CLIFTON v. STATE (2026)

Appellants Morio Clifton and Christopher Woody were convicted of malice murder and other crimes in relation to the death of Warren Roseberry.¹ On appeal, Clifton challenges the sufficiency of the evidence supporting his murder conviction and alleges various errors by the trial court and trial counsel. Woody challenges two jury instructions and alleges that he received ineffective assistance of counsel. All of these claims fail, so we affirm.

1. The evidence presented at trial was as follows. In May 2015, A.J., whose girlfriend shared an apartment with Roseberry's mother, was accosted while walking from his girlfriend's apartment to a nearby store. A.J. was wearing a red shirt and red “headscarf,” and the young man who accosted him believed that A.J. was “false flagging”—that is, pretending to be a member of the Bloods street gang based on his red clothing. A.J. was again confronted about his clothing when he left the store, this time by a group of young men led by a man with red dreadlocks, later identified as Woody. A fight broke out, and the group chased A.J. back to his girlfriend's apartment.

Over the course of the next day or so, several verbal and physical confrontations occurred between people staying in that apartment and a group of young men, including Woody. The confrontations concerned “gang stuff,” apparently driven by A.J.’s perceived “false flagging.” Police officers participated in breaking up at least two confrontations.

Sometime later, the group of men involved in the previous confrontations, including Woody and Clifton, returned to A.J.’s girlfriend's apartment. Another confrontation arose, this time involving A.J.’s girlfriend's son, and devolved into a physical altercation. Roseberry tried to break up the fight but got involved when Woody swung at him. Eyewitness Angie Smith then heard Clifton tell Woody to go get a pistol. Woody returned with a pistol and fired it in the air several times. Clifton said, “[T]his is what Bloods do,” and multiple eyewitnesses saw Woody shoot Roseberry. One eyewitness, Smith, saw Clifton shoot at Roseberry. Roseberry sustained a gunshot wound to the chest which resulted in his death. Clifton fled the scene after the shooting.

At trial, an investigating officer testified that one witness, LaRon Harper, previously recounted seeing both Woody and Clifton shoot at Roseberry. The investigator also testified that Smith had identified both Woody and Clifton as shooters. And a firearms examiner testified that shell casings recovered from the scene of the shooting indicated that two separate .40-caliber Smith & Wesson handguns were fired, along with one nine-millimeter Sccy handgun.

Woody testified in his own defense. He admitted that he was a member of the Bloods, owned a .40-caliber handgun, chased A.J. the day before the shooting, fired a gun at the scene of Roseberry's shooting, and fled the scene afterward. But he claimed he fired the gun into the air only to break up the fight. Clifton did not testify.

 Case No. S26A0716

2. In his first claim of error, Clifton argues generally that the evidence presented by the State was not sufficient as a matter of federal constitutional due process to support his conviction for malice murder.² In particular, he complains that there was no direct eyewitness testimony that he fired the shot that killed Roseberry and challenges the absence of certain physical evidence, such as DNA, fingerprint, or ballistics evidence, establishing the same. We are not persuaded.

“Evidence is constitutionally sufficient to sustain a conviction if, when viewed in the light most favorable to the verdicts, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the charged crime.” Badie v. State, 324 Ga. 94, 96 (2026) (quotation marks omitted). “That review is limited and leaves to the trier of fact the resolution of conflicts in the testimony, the weight of the evidence, the credibility of witnesses, and reasonable inferences to be made from basic facts to ultimate facts.” Welsch v. State, 323 Ga. 504, 506–07 (2026) (cleaned up). And, as we have said before, “the State [is] not required to prove [a defendant's] guilt with any particular kind of evidence.” Id. at 507. “Competent evidence is all that is required.” Gines v. State, 324 Ga. 46, 52 (2026).

We have no trouble concluding that the trial evidence was constitutionally sufficient to support Clifton's malice murder conviction. The State was required to prove that Clifton “unlawfully and with malice aforethought caused” Roseberry's death. Welsch, 323 Ga. at 507 (quotation marks omitted). “Malice incorporates the intent to kill.” Id. (quotation marks omitted).

At trial, an eyewitness testified that he heard Clifton say, “[T]his is what Bloods do,” and two eyewitnesses saw Clifton fire a gun at Roseberry. Roseberry indisputably died from a gunshot wound. Evidence that Clifton “armed himself and subsequently discharged his weapon during the attack on” Roseberry authorized a rational jury to conclude that he acted with malice aforethought. See Badie, 324 Ga. at 97. And regardless of whether Clifton or Woody fired the fatal shot, Clifton's conduct “supports the jury's conclusion that he shared an intent to murder the victim.” Mohamed v. State, 307 Ga. 89, 90–91 (2019) (when multiple defendants attack victim and evidence does not establish which defendant inflicted fatal wound, evidence of both defendants’ shared intent to kill the victim sufficient to sustain malice murder conviction at least as party to the crime). And finally, the absence of certain physical evidence at trial, like DNA, fingerprint, or ballistics evidence, “does not mean that the evidence that was introduced was insufficient,” and Clifton's complaints on that front present no basis for reversal. See Gines, 324 Ga. at 52. Accordingly, this argument fails.

3. Clifton next claims that juror misconduct tainted his convictions and that he is entitled to a new trial as a result. This claim also fails.

(a) Sometime after the trial, juror L.A. approached Woody's attorney and expressed concern about alleged juror misconduct before and during deliberations. She claimed some jurors discussed the defendants’ guilt before deliberations; independently researched multiple matters; rushed through deliberations; and incorrectly deliberated only the gang count given the mistaken belief that guilt on that count meant guilt on all other counts. L.A. executed an affidavit detailing the alleged misconduct and testified similarly at the motion for new trial hearing.

Nine other jurors—seven deliberating jurors and two alternates—also testified at the motion for new trial hearing. All testified either that there was no misconduct or that they remembered no misconduct. Seven of those jurors executed affidavits stating that they performed no outside research; had no reason to believe other jurors performed outside research; received no outside information; and considered only the evidence presented at trial and the law as charged by the trial court.

The trial court rejected the juror misconduct claim. It expressly found juror L.A.’s testimony not credible and credited the other nine jurors’ contrary testimony.

(b) We review for abuse of discretion a trial court's ruling on a juror misconduct claim. See Poppell v. Cardinal Health, Inc., 319 Ga. 670, 674–75 (2024); Dorsey v. State, 279 Ga. 534, 544 (2005). In resolving a claim of juror misconduct, the trial court acts “as the fact-finder to determine issues of credibility and resolve any inconsistencies in the admissible evidence, and the trial court's findings of fact ․ will be upheld unless clearly erroneous.” Poppell, 319 Ga. at 677 (cleaned up).

In challenging the trial court's ruling, Clifton argues that L.A.’s testimony established that juror misconduct occurred and that, as a result, the trial court was wrong to reject this claim. But in its role as the fact-finder, the trial court was authorized, as it did, to credit the testimony of the nine jurors who refuted the claim of juror misconduct and to reject the testimony of the single juror alleging misconduct. And considering the trial court's determination that the allegations of misconduct were not credible, there was no abuse of discretion in its denial of the motion for new trial on this basis. See Harris v. State, 274 Ga. 774, 775 (2002) (trial court does not abuse its discretion denying a motion for new trial based on juror misconduct where evidence of misconduct is conflicting and court credits testimony denying allegations of misconduct). Clifton's argument therefore fails.

4. Clifton also claims that the trial court erroneously denied his motion for a new trial under OCGA §§ 5-5-20 and 5-5-21 — the “general grounds.”

Under Georgia law, a trial court is authorized to grant a new trial ‘in any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity,’ OCGA § 5-5-20, or when ‘the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding,’ OCGA § 5-5-21 ․ [T]he two statutes give the trial court broad discretion to sit as a thirteenth juror and weigh the evidence on a motion for new trial alleging these general grounds. Whether to grant a new trial on the general grounds is a decision left to the sole discretion of the trial court. Thus, on appellate review, our role is limited to determining whether the trial court exercised that discretion, and in the absence of affirmative evidence to the contrary, we presume that the trial court did so.

Gines, 324 Ga. at 60–61 (cleaned up; emphasis added).

Clifton does not argue that the trial court failed to properly exercise its discretion. And the record reflects that the trial court “identified the correct legal standard, reviewed the evidence, and found that the verdict was not contrary to the law or the principles of justice and equity.” Patterson v. State, 324 Ga. 6, 11 (2026). There is nothing for us to review, so this claim fails.

5. Clifton next argues that the trial court violated the “continuing witness rule” when it allowed evidence of Clifton's Facebook posts and several 911 computer-aided dispatch reports, which logged information about incoming 911 calls, to go back with the jury during its deliberations. This argument is unavailing.

The continuing witness rule regulates “which documents or recordings go into the jury room with the jury during deliberations and which ones do not.” Lyons v. State, 309 Ga. 15, 18 (2020). It is “based on the principle that it is unfair and places undue emphasis on written testimony that has been read to the jury for the writing to be sent out with the jury to be read again during deliberations whereas oral testimony is received by the jury only once.” Muse v. State, 316 Ga. 639, 659 (2023). So it “is directed at written testimony that is heard by the jury when read from the witness stand.” Moore v. State, 311 Ga. 506, 511 (2021). And it covers things like affidavits, depositions, written confessions, statements, and dying declarations, Lofton v. State, 310 Ga. 770, 786 (2021) — that is, “written testimony” that “derive[s] its evidentiary value solely from the credibility of its maker,” Robinson v. State, 308 Ga. 543, 553 (2020). But the continuing witness rule does not apply to “original documentary evidence.” Keller v. State, 308 Ga. 492, 506 (2020) (concluding that copies of defendant's text messages were “original documentary evidence” and thus not subject to continuing witness rule).

Here, the Facebook records were not subject to the continuing witness rule. Like records of a defendant's text messages, records of a defendant's social media posts are “not the reduction to writing of an oral statement, nor a written statement provided in lieu of testimony.” See Keller, 308 Ga. at 506 (cleaned up). They are instead “original documentary evidence,” “properly allowed to go out with the jury.” Id. (quotation marks omitted). So there was no continuing witness rule violation as to Clifton's Facebook posts.

So too for the 911 computer-aided dispatch reports. The reports automatically documented things like the date, time, and location of the call. They also include dispatcher-entered information like biographical information about the caller and narrative remarks such as: “[caller] yelling unable to understand.” Again, this is original documentary evidence — cataloging factual information largely collected automatically during the course of a 911 call — rather than a written statement provided in lieu of testimony. See Keller, 308 Ga. at 506.

And even assuming without deciding that some narrative remarks obtained from the 911 callers were subject to the continuing witness rule, any error in allowing the computer-aided dispatch reports to go out with the jury during deliberations was harmless. Those narrative remarks were cumulative of other evidence properly admitted at trial and merely concerned such undisputed facts as that a “group of males [was] fighting in front of [an apartment] complex” or that “3 shots [were fired] in the area.” None of that information directly inculpated Clifton, and the evidence of his guilt was strong. So even assuming the narrative statements in the computer-aided dispatch reports implicated the continuing witness rule, it is highly likely that allowing the reports to go out with the jury during deliberations did not affect the verdict. See Scott v. State, 321 Ga. 701, 708–09 (2025) (assumed continuing witness rule violation harmless where evidence of defendant's guilt was substantial); Thornton v. State, 312 Ga. 224, 229 (2021) (erroneous admission of evidence was harmless where it was cumulative of other evidence and evidence of defendant's guilt was strong).

6. Clifton next claims that the State violated Brady v. Maryland, 373 US 83 (1963), when it failed to disclose before trial a recorded interview with co-defendant Woody during which Woody identified someone besides Clifton as the shooter. Clifton argues that he did not learn about the interview until Woody testified about it at trial and that he was deprived of the ability to investigate and utilize the information in the interview.

In order to prevail on his Brady claim, Clifton must show that:

(1) the State, including any part of the prosecution team, possessed evidence favorable to the defendant; (2) the defendant did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) a reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed to the defense.

Harris v. State, 309 Ga. 599, 605–06 (2020). “To establish the fourth prong, often referred to as materiality, a defendant does not need to show that he necessarily would have been acquitted, but only that the State's evidentiary suppression undermines confidence in the outcome of the trial.” Muse v. State, 316 Ga. 639, 662 (2023) (quotation marks omitted). And in the case of an untimely disclosure, “a defendant must show that an earlier disclosure would have benefited the defense and that the delayed disclosure deprived him of a fair trial or materially prejudiced his defense.” Id. (quotation marks omitted).

Clifton has not done so here. At trial, Woody testified to both the third party's alleged involvement in the shooting and Clifton's alleged non-involvement. And Clifton asked Woody about both statements on cross-examination. Moreover, Clifton was informed, through the State's supplemental discovery, of the third party's potential involvement before trial. So, given that the jury heard the allegedly withheld information and that Clifton made use of it at trial, Clifton has failed to meet his burden of showing that “an earlier disclosure would have benefited the defense and that [any assumed delay in] disclosure” deprived Clifton “of a fair trial.” Muse, 316 Ga. at 662 (quotation marks omitted) (appellant failed to show mid-trial disclosure of phone records likely affected outcome of trial because defendant highlighted evidence during closing and therefore could not show material prejudice from delayed disclosure). As such, this claim fails.

7. Clifton next claims that his trial counsel was constitutionally ineffective for failing to object to certain testimony. As always,

[t]o demonstrate ineffective assistance a defendant must show both that his trial counsel performed deficiently and that the deficiency prejudiced his defense. The deficiency prong requires the defendant to show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in light of prevailing professional norms. That inquiry focuses on the objective reasonableness of counsel's performance, not counsel's subjective state of mind. The prejudice prong requires the defendant to show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․. Demonstrating ineffective assistance is a high bar, and if a defendant fails to show either deficiency or prejudice, we are not required to consider the other.

Momon v. State, 322 Ga. 848, 850–51 (2025) (cleaned up).

And where, as here, a defendant seeks to demonstrate ineffective assistance based on “fail[ure] to raise various evidentiary objections, ․ [he] must show that no reasonable lawyer would have failed to make the objection.” Id. at 851 (cleaned up). “[A] defendant fails to carry that burden if, for example, the objection would not have been sustained[.] A competent attorney need not make every objection that would be sustained, so a defendant alleging ineffective assistance must show that not objecting to certain testimony was a patently unreasonable strategy.” Id. (cleaned up).

(a) Clifton first claims that his trial counsel was ineffective by not making bolstering objections to detectives’ testimony about witness C.G., witness Harper, and witness Smith. We disagree.

“OCGA § 24-6-620 says that the credibility of a witness shall be a matter to be determined by the trier of fact.” Brown v. State, 302 Ga. 454, 460 (2017). “Under this rule, ․ a witness ․ can never bolster the credibility of another witness as to whether the witness is telling the truth. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury.” Id. But “[w]hen a witness's statement does not directly address the credibility of another witness, ․ there is no improper bolstering.” Id. at 460–61.

Here, neither of the detectives testified directly about the credibility of C.G., Harper, or Smith. Clifton does not identify any testimony that would have been subject to a bolstering objection. That means any objection on the basis that the testimony was “bolstering” would not have succeeded, and Clifton has failed to show that trial counsel was deficient in this respect. See Momon, 322 Ga. 854–55 (trial counsel does not perform deficiently by failing to raise a meritless objection); Davis v. State, 306 Ga. 140, 146 (2019).

(b) Clifton next claims that his attorney was ineffective by not raising a hearsay objection to a detective's testimony about witness C.G.’s out-of-court statements. But Clifton does not identify with any specificity which statements he contends were subject to a hearsay objection. Instead, he cites all of C.G.’s direct examination, most of the detective's direct examination, all of the detective's redirect examination, and all of the recording of an interview with C.G. “It is not the function of this Court to cull the record for a party to find alleged errors or to form arguments on the appellant's behalf.” Neuman v. State, 311 Ga. 83, 96 (2021). Having failed to identify which statements he believes were subject to a hearsay objection, Clifton has not affirmatively established that he received ineffective assistance of counsel. See United States v. Robinson, 87 F4th 658, 671–72 (5th Cir. 2023) (declining to address alleged hearsay error regarding 20-minute body camera footage with multiple statements from multiple speakers where appellant failed to object “on a statement-specific basis and instead object[ed] to the footage wholesale”). He has not met his burden of affirmatively establishing error from the record, so this claim fails.

(c) Clifton also claims that his attorney provided ineffective assistance of counsel by failing to raise a hearsay objection to a detective's testimony about Harper's out-of-court statement identifying Woody and “a second shooter” as responsible for Roseberry's killing.

But a hearsay objection would have been meritless. To the extent Harper identified Woody as a shooter, that statement was not hearsay. Harper testified at trial and was subject to cross-examination. So, because Harper identified Woody after witnessing Woody shoot Roseberry, the statement was admissible as a “statement ․ of identification of a person made after perceiving the person.” OCGA § 24-8-801(d)(1)(C) (“A statement shall not be hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person.”). See also, e.g., United States v. Blackman, 66 F3d 1572, 1578 (11th Cir. 1995) (where declarant testifies at trial, out-of-court identification by declarant is admissible through another witness's in-court testimony under Federal Rule of Evidence 801(d)(1)(C)). Cf. Dailey v. State, 297 Ga. 442, 444 (2015) (prior identification inadmissible under OCGA § 24-8-801(d)(1)(C) where declarant does not testify at trial).

And Harper's out-of-court statement that there was “a second shooter,” introduced through the detective's testimony, was inconsistent with his earlier testimony that he saw only Woody with a gun and, thus, was admissible as a prior inconsistent statement. See OCGA § 24-8-801(d)(1)(A) (“An out-of-court statement shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under Code Section 24-6-613[.]”); OCGA § 24-6-613(b). As such, a hearsay objection would have been meritless, and this claim fails. See, e.g., Slaton v. State, 303 Ga. 651, 658 (2018) (“Because a hearsay objection would have been meritless, counsel were not ineffective for failing to make the objection.”).

(d) Clifton also claims that he received ineffective assistance of counsel because his attorney did not raise a hearsay objection when a detective testified that witness Smith “identified Christopher Woody as having a gun and having shot it in the air, ․ and she identified Morio Clifton.”

As with Harper's statement, Smith's out-of-court statement was admissible as a prior identification. Smith testified at trial and was subject to cross examination, and she made the statement identifying Clifton and Woody as shooters after she saw them commit the shooting. A hearsay objection to her testimony, therefore, would not have succeeded. See OCGA § 24-8-801(d)(1)(C); Blackman, 66 F3d at 1578. So Clifton's attorney was not deficient for not making that objection, and this claim fails. See Slaton, 303 Ga. at 658.

8. Finally, Clifton claims that the cumulative effect of his trial counsel's and the trial court's errors denied him a fundamentally fair trial. But we assumed only one trial court error (as to the narrative portions of the 911 computer-aided dispatch reports) and found no error on the part of trial counsel, so there is nothing to cumulate, and this claim fails. See Perrault v. State, 316 Ga. 241, 248 (2023) (no cumulative error where defendant fails to identify at least two errors).

 Case No. S26A0795

9. Woody first claims that, in response to a jury question, the trial court erroneously instructed the jury to consider only evidence presented by the State. Specifically, during deliberations, the jury asked the trial court: “Does each defendant need to meet all four criteria specified in charge No. 1 [the gang activity count] in order to be convicted of said charge?” After consultation with the parties, the trial court responded: “Yes. And I remind you again, you consider each count with each defendant, and you measure the evidence that the State has presented as to each defendant and as to each count to determine whether or not they met their burden of proof beyond a reasonable doubt, okay.” Citing Salisbury v. State, 221 Ga. 718 (1966), Woody argues that the trial court's response limited the jury to considering only evidence the State presented, excluding evidence from Woody's own testimony and testimony elicited during Woody's cross-examination of the State's witnesses.

Woody did not object to this instruction, so we review this claim for plain error only. State v. Williams, 308 Ga. 228, 231 (2020). That means Woody must identify an instructional error that “was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Rivers v. State, 323 Ga. 596, 599 (2026). If he fails to satisfy any one of the prongs of this test, we need not address the others. Id. Woody has not identified an instructional error, much less one that is obvious beyond reasonable dispute.

We view jury instructions as a whole, see Montgomery v. State, 323 Ga. 119, 124 (2025), so context is key. Here, the trial court's instruction that the jury “consider each count with each defendant” and “measure the evidence that the State has presented as to each defendant and as to each count” was not made in the abstract. The trial court's instruction was in response to the jury's asking whether each defendant had to satisfy each element of the gang activity charge to be found guilty on that count. It was not a freestanding command to ignore all evidence except that presented by the State; it was a correct instruction that the State had to prove each element of each crime for each defendant. See, e.g., Jackson v. State, 281 Ga. 705, 707 (2007) (“[T]he trial court correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt[.]”); Hightower v. State, 287 Ga. 586, 590 (2010) (noting with approval that trial court instructed the jury that it “must determine the guilt or innocence of each defendant separately”).

And looking to the jury instructions as a whole, the trial court elsewhere instructed the jury to “take all of this stuff that's been gathered and presented here in court along with all of the testimony, and you have to consider it ․ with respect to each defendant individually and with respect to each crime and see if the State has proved their case as to [each] defendant with this evidence or not.” The court also instructed the jury on the presumption of innocence, on the fact that the presumption remains with the defendants throughout trial, and on the State's burden to overcome that presumption beyond a reasonable doubt. And the trial court reiterated to the jury that it should “giv[e] consideration to all of the facts and circumstances of this case.” So, taken as a whole, the jury instructions did not improperly restrict the jury to considering only the evidence presented by the State.

And, contrary to Woody's argument, this case is different from Salisbury. There, we held that it was error to instruct the jury that “[i]f the State has proved those material allegations beyond a reasonable doubt, the defendant on trial would be guilty and it would be your duty to so say by your verdict.” 221 Ga. at 718–19. We reasoned that the Salisbury instruction “amounted to” a freestanding “instruction that if the State's evidence proved the material allegations of the indictment beyond a reasonable doubt, the defendant was guilty and it would be the duty of the jury to so find.” Id. at 719. Assuming Salisbury was correct (which we need not consider at this time), the instruction here is different. That instruction simply charged the jury — in response to a specific jury question — to consider the evidence presented against each defendant on each count. And we have held post-Salisbury that similar instructions are not erroneous where “upon examination of the entire charge it is clear that the jury could not have failed to understand that it was bound to consider all of the evidence adduced upon the trial in determining whether to convict or acquit the accused.” Cape v. State, 246 Ga. 520, 526 (1980). So too here, where — in context and considering the jury instructions as a whole — the “import [of the jury charge] was that ‘the burden rests upon the State’ to prove” all “material allegations” as to each defendant. See Favors v. State, 228 Ga. 196, 198 (1971). Woody has therefore failed to establish that the court clearly erred, so there was no plain error, and this claim fails.

10. Woody next argues that the trial court erred when it charged the jury on the nexus element of the criminal street gang activity count. Specifically, the trial court instructed the jury that, to satisfy the nexus element, “the State must prove that there is a nexus between the crime committed and the gang, if the crime was committed to further the interests of the gang, meaning proof that the crime committed was the sort of crime that the gang does.” That was error, Woody asserts, because the “fact that the gang commits a certain type or sort of crime cannot mean that the particular indicted predicate crime also furthered the gang's interest.” As with the previous enumeration, Woody did not object to this instruction, so we review it for plain error only. See Williams, 308 Ga. at 231.

We agree with Woody that this instruction was clear and obvious error. When we review for plain error, we apply the law existing at the time of appeal. See Lyman v. State, 301 Ga. 312, 318 (2017). And we recently held that a nearly identical instruction on the nexus element of a criminal street gang activity count was an incorrect statement of the law. Lee v. State, 324 Ga. 352, 355–56 (2026) (error to instruct jury that nexus element satisfied by evidence “that the crime committed is the type of crime that members of the alleged gang are known to commit”). A finding that the defendant's crime was the “type” or “sort” of crime that a gang or its members commits “is not the same thing as the ultimate (and required) finding that the defendant committed the crime with the intent to further the criminal purposes of the gang.” Id. at 356. Instead, the “touchstone for the nexus element remains proof that the crime was committed with the intent to further the criminal purposes of the gang[.]” Id. at 357. So the trial court clearly and obviously erred here when it told the jury that the nexus element could be satisfied by “proof that the crime committed was the sort of crime that the gang does.” See id. at 355.

But that error was unlikely to have affected the outcome of the trial. Woody has not shown that, had the trial court correctly instructed the jury on the nexus element, the jury likely would not have concluded that Roseberry's shooting was committed “with the intent to further the criminal purposes of the gang.” See Lee, 324 Ga. at 356. Woody admitted to being a member of the Bloods. The series of confrontations that led up to the shooting arose from an alleged “false flagging” incident, where A.J. was accused of pretending to be a member of the Bloods street gang. The State's gang expert testified that there could be serious repercussions — being assaulted or even killed — for the perceived disrespect of falsely pretending to be a member of the Bloods. A series of verbal and physical altercations ensued over the course of two days, with various individuals and groups trying to reach A.J. — apparently with the intent to punish him for his perceived slight. And after Clifton told Woody to go get a pistol, Clifton stated, “[T]his is what Bloods do,” right before multiple eyewitnesses saw Woody shoot at Roseberry. So, even with the correct instruction, Woody has not shown that the jury likely would not have concluded that he shot at Roseberry to enforce the Bloods gang's opposition to “false flagging” by A.J., on whose “side” Roseberry was ostensibly fighting. Cf. Bradford v. State, 323 Ga. 675, 685–86 (2026) (evidence sufficient to satisfy nexus requirement where detective testified that certain crimes were expected of gang members and committed in order to benefit the gang); Butler v. State, 310 Ga. 892, 897 (2021) (“[E]vidence of a defendant's association with a gang and participation in its activities before and during the crimes charged may provide the required nexus between his criminal acts and the intent to further the gang's interests.” (quotation marks omitted)). See also Bridges v. State, 268 Ga. 700, 706 (1997) (instructional error on intent element of malice murder harmless where evidence of intent was overwhelming). Woody's claim of plain error therefore fails.

11. Finally, Woody claims that his attorney provided ineffective assistance by not cross-examining witness Harper about his alleged homelessness and attendant request for help from the State in exchange for Harper's statement to police. This claim fails.

“Strickland ․ does not require trial counsel to take advantage of every possible opportunity to call witness testimony into question, as decisions surrounding when and how to impeach fit squarely within the realm of trial strategy.” Rouse v. State, 322 Ga. 328, 335 (2025). Though trial counsel did not cross-examine Harper about his housing status or request for assistance, counsel did undermine Harper's testimony by eliciting an admission that his trial testimony differed significantly from what he previously told investigators. She also elicited Harper's testimony that one of the investigators asked Harper “what the streets [were] saying,” possibly casting further doubt on Harper's account of the crime. Plus, counsel questioned Harper regarding his gang affiliation. Under these circumstances, it was not objectively unreasonable and, thus, not deficient performance for counsel to decline to question Harper about his housing and alleged request for assistance, especially when the record does not reflect that the State actually provided any assistance to Harper and when Harper's credibility was damaged on other grounds. See Momon, 322 Ga. at 853 (methods of undermining objectionable or unfavorable testimony ordinarily a matter of trial strategy). Having failed to show deficient performance, Woody's claim fails.

Judgment affirmed.

FOOTNOTES

1.   The crimes occurred on May 11, 2015. On August 11, 2015, a Fulton County grand jury indicted Clifton for participation in criminal street gang activity (Count 1), malice murder (Count 2), three counts of felony murder (Counts 3–5), aggravated assault (Count 6), possession of a firearm during the commission of a felony (Count 7), and possession of a firearm by a convicted felon (Count 8). The grand jury also indicted Woody on Counts 1–4, 6, and 7.At a joint trial in July and August 2017, a jury found Clifton and Woody guilty on all counts. In December of 2017, the trial court sentenced Clifton to serve life in prison without the possibility of parole on Count 2, a concurrent 15 years in prison on Count 1, a concurrent 5 years in prison on Count 7, and a consecutive 5 years in prison on Count 8. The remaining charges merged or were vacated by operation of law. The trial court sentenced Woody to serve life in prison on Count 2, a concurrent 15 years in prison on Count 1, and a suspended 5 years in prison on Count 7. The remaining charges merged or were vacated by operation of law.Clifton and Woody filed timely motions for new trial and amended their motions multiple times through new counsel. Clifton first moved for a new trial on January 4, 2018, and amended his motion on September 16, 2019, and February 1, 2021. Woody first moved for a new trial on August 18, 2017, and amended his motion on December 27, 2017, September 16, 2019, November 29, 2021, and again on March 28, 2025. Following an evidentiary hearing on October 4 and 8, 2024, the trial court denied Clifton's and Woody's motions, as amended, on July 16, 2025. Clifton and Woody filed timely notices of appeal to this Court, and their cases were docketed to this Court's April 2026 term and submitted for decision on the briefs.We note that roughly 7.5 years passed between when Clifton and Woody were convicted and when their motions for new trial were resolved. As we have said before, “these extended and unjustified delays in resolving criminal cases make our State's criminal justice system appear unfair and grossly inefficient. ․ It is the duty of everyone involved in the criminal justice system, including trial courts, prosecutors, defense counsel, and defendants, to make sure that post-conviction motions are filed, litigated, and decided without unnecessary delay.” Spann v. State, 929 SE2d 243, 245 n.2 (2026) (cleaned up).

2.   Clifton purports to challenge the sufficiency of the evidence supporting all of his convictions, but he makes specific arguments only as to his murder conviction. So we address only whether the evidence was sufficient to support the malice murder conviction. See Holloway v. State, 320 Ga. 668, 669 n.2 (2025). To the extent Clifton challenges the sufficiency of the evidence supporting his felony murder conviction, he was not convicted or sentenced on that count, and that challenge is moot. See Floyd v. State, 321 Ga. 717, 720 n.2 (2025).

Bethel, Justice.

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