GREENE v. STATE (2026)

Rodney Greene, Jr. appeals his conviction for felony murder in connection with the shooting death of Tyjerus White.¹ On appeal, he challenges the constitutional sufficiency of the evidence. He also raises two ineffective-assistance-of-counsel claims, arguing that trial counsel should have moved for a mistrial based on certain juror irregularities and should have called a GBI agent to testify at trial about cartridge cases found on the crime scene. For the reasons explained below, we affirm Greene's conviction.

1. The trial evidence showed the following. About an hour before the shooting, White drove three female companions (Adashia Hale, Mytesha Carson, and Chasidty Johnson) from the east side to the south side of Americus, where they parked on the street outside the house of a man identified at trial as “Tuck.” White, Hale, Carson, and Johnson spent some time drinking alcohol and “chilling” at Tuck's house before returning to White's car.

Tuck lived next door to the mother of Greene's co-indictee, Eric Davis. And as White, Hale, Carson, and Johnson were sitting in White's car outside Tuck's house, Greene, who was familiar with White and the women in the car, approached the car on foot. Greene started talking to Hale, who was sitting directly behind White in the rear driver's side seat with her window rolled down. And all three women in the car testified that Greene was behaving strangely — that he appeared to be drunk, “high,” or otherwise “messed up,” and looked like he had “bad intention[s]” and “came to start something.”

Hale, Carson, and Johnson said that, at some point during the brief interaction, Greene reached through Hale's window, struck a lighter, and held a flame behind White's head, near one of his “dreads.” According to Johnson, the heat from the lighter made White turn around. A verbal confrontation ensued, with White telling Greene to stop engaging in “childish” behavior and Greene arguing back.

White then got out of the car, and the argument continued. Although White had a gun in his car, Hale, Carson, and Johnson testified that he was unarmed when he got out of the vehicle to continue the argument. Nevertheless, Greene pulled out a handgun and starting “waving it around.” At that point, Hale retreated into Tuck's house for safety. Shortly thereafter, Johnson and Carson persuaded White to get back into his vehicle. But Greene then walked back toward White's car “with his gun out,” at which point White exited the car with his gun in hand. According to Carson, White said something to the effect of “Everybody move.” And the two men continued arguing.

Multiple gunshots then rang out. Hale (who was inside the house at the time) and Carson and Johnson (who were busy taking cover) testified that they did not see who was shooting. Although Johnson assumed based on the number of gunshots that both men had fired, Carson testified that Greene was the one shooting because she heard the gunshots coming from his location.

At some point during the gunfire or immediately following it, White got into his car, which then slowly rolled down the street and crashed into a duplex. According to Hale and Johnson, Johnson said to Greene, “You just killed my brother,”² and Greene responded by saying something to the effect of “I hope he dead.” Hale and Johnson then went to check on White, whom they found slumped over and motionless in his crashed car. Hale called 911. And when Hale went back up the street to the scene of the crime, she and Carson saw Greene get into Davis's car and ride away.

Officers responded to the scene and found White lying motionless in his car with a gunshot wound. A medical examiner later recovered a single .22 caliber bullet from White's body and determined that he had died from a gunshot wound to the chest.

At the crime scene, officers found a 9mm pistol on the driver's side floorboard of White's car and six .22 caliber cartridge cases on or near the sidewalk across the street from where White had previously been parked. The 9mm pistol found in White's car, which had a magazine designed to hold ten rounds and could be loaded with an additional round in the chamber, contained nine rounds in the magazine and one in the chamber. After a thorough search of the “entire area,” from the area outside Tuck's house to the location where White's car crashed into the duplex, as well as a search of White's car, officers did not find any other cartridge cases.

Greene was arrested a couple weeks after the shooting and admitted to an officer that he had an argument with White and had shot him with a .22 caliber Ruger handgun. The .22 caliber firearm used to shoot White was never recovered. But the State's firearm's expert testified that the six .22 caliber cartridge cases found at the scene had been fired from a single firearm and that the cartridge cases, as well as the .22 caliber bullet recovered from White's body, were consistent with having been fired from a Ruger .22 caliber semiautomatic pistol.

2. On appeal, Greene claims that the trial evidence was constitutionally insufficient to disprove his justification defense. In particular, Greene argues that the State failed to disprove his justification defense beyond a reasonable doubt because White's 9mm pistol recovered from the scene contained one less round than it had the capacity to hold, leaving open the possibility that White was the first person to shoot. As explained below, however, the jury was authorized to reject Greene's self-defense theory.

“Evidence is sufficient as a matter of constitutional due process if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” Pierce v. State, 319 Ga. 846, 849, 907 S.E.2d 281 (2024) (quotation marks omitted). “When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.” Id. at 849–50, 907 S.E.2d 281 (cleaned up). Although “the State has the burden of disproving [a defendant's justification] defense beyond a reasonable doubt” at trial, Frison v. State, 323 Ga. 156, 160, 924 S.E.2d 274 (2025), “it is the defendant's burden [on appeal] to show that the trial evidence was insufficient as a matter of constitutional due process,” Rainey v. State, 324 Ga. 22, 26, 928 S.E.2d 55 (2026) (quotation marks omitted).

Greene has not carried his burden on appeal to show that the trial evidence was constitutionally insufficient to disprove his self-defense theory. As a general matter under Georgia law, “[a] person is not justified in using force ․ if he ․ [w]as the aggressor.” OCGA § 16-3-21(b)(3). And here, the jury was authorized to find that Greene was the aggressor based on the testimony of Hale, Carson, and Johnson that Greene instigated a confrontation with White by physically threatening to burn White's hair, that Greene then escalated tensions by brandishing and waving around a firearm, and that, after White attempted to disengage from the confrontation by getting into his vehicle, Greene approached White again with a firearm in hand. The jury was entitled to credit this testimony and “reject any evidence in support of a justification defense.” Rogers v. State, 323 Ga. 752, 756, 927 S.E.2d 208 (2026) (quotation marks omitted). Accordingly, this claim fails. See, e.g., Holloway v. State, 320 Ga. 668, 670, 911 S.E.2d 554 (2025) (holding that the evidence was sufficient to disprove a self-defense claim where the defendant brandished a gun while the victim was walking away with his back turned, supporting a finding that he was the aggressor).

3. Greene raises two claims of ineffective assistance of counsel on appeal. As explained below, both claims fail because Greene has not established deficient performance.

“To prevail on an ineffective-assistance-of-counsel claim, a defendant must prove both deficient performance by counsel and resulting prejudice.” Rosenau v. State, 321 Ga. 299, 307, 914 S.E.2d 300 (2025) (quotation marks omitted). “To satisfy the deficiency prong, a defendant must demonstrate that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Id. (quotation marks omitted). “The law recognizes a strong presumption that counsel performed reasonably, and the defendant bears the burden of overcoming this presumption.” Id. (quotation marks omitted). “To carry this burden, a defendant must show that no reasonable lawyer would have done what his lawyer did[ ] or would have failed to do what his lawyer did not.” Id. (quotation marks omitted). And “decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.” Id. (quotation marks omitted). “If a defendant fails to carry his burden of proving either deficient performance or prejudice, the defendant's ineffective-assistance-of-counsel claim fails, and we need not consider the other prong of the test.” Id. (quotation marks omitted).

(a) Greene claims that his trial counsel was constitutionally ineffective for failing to move for a mistrial based on certain juror irregularities. We disagree.

By way of background, on the second day of trial, the trial court sua sponte addressed jurors about potential misconduct on two occasions. First, the court dismissed the jury for lunch but asked an alternate juror to stay behind and asked her if she had been falling asleep. The alternate juror responded that she had not been falling asleep, that she had a history of seizures, and that she had been lowering her head only to mitigate the risk of seizures. The court did not take any further action regarding the matter.³

Second, at the end of the day, the court addressed the jury, saying that it had noticed jurors “kind of talking to each other and maybe even looking at each other's notes.” The court reminded the jurors that they could not look at each other's notes, talk about the case, or otherwise communicate with each other about the evidence while the evidence was being presented. The court then allowed the jurors to leave the courtroom but asked one juror to stay behind. The court asked that juror if he had been looking at his phone, noted that the juror appeared to be nodding to another juror, and asked if he was communicating with the other juror about his phone. The juror responded that he had checked a text message from his mother but denied communicating about his phone to other jurors. When asked, the juror agreed that he could follow the court's instructions to leave his phone at home the next day and to refrain from discussing the case with other jurors before deliberations. Although the prosecutor initially asked the court to remove the juror for violating the court's prior instructions on telephone use, the prosecutor withdrew the request after trial counsel noted that the juror's conduct did not appear to be harmful.

At the motion-for-new-trial hearing, trial counsel testified that he was watching the jury throughout the trial, but that he did not personally “recall seeing any juror issues during the trial.” He further testified that the trial court had made certain inquiries of certain jurors, that he was satisfied with the jurors’ responses and did not think further inquiries were necessary, and that he “didn't see grounds for a mistrial” based on the jury issues that arose. In its order denying Greene's motion for new trial, the trial court determined that trial counsel was not deficient for failing to move for a mistrial because there was no valid basis for trial counsel to seek a mistrial.

On appeal, Greene appears to concede that no “individual instance” of jury misconduct warranted a mistrial. But he argues that trial counsel was deficient for failing to move for a mistrial based on juror misconduct in “the aggregate.” According to Greene, trial counsel should have moved for a mistrial because the trial court's need to address jurors “regarding misconduct on multiple occasions” showed a general “lack of attention or respect toward court rules.” As explained below, however, trial counsel's failure to move for a mistrial does not establish deficient performance “[b]ecause the trial court would have acted within its discretion in denying a motion for mistrial.” Troutman v. State, 320 Ga. 489, 498–99, 910 S.E.2d 173 (2024).

Although the record shows that the trial court spoke to jurors about potential misconduct on more than one occasion, the record does not establish that any juror misconduct with the potential to affect Greene's right to a fair trial in fact occurred. First, Greene has not shown that the alternate juror who appeared to be sleeping engaged in any misconduct because she clarified that she was not sleeping, and Greene has not argued that it was unreasonable for the trial court or trial counsel to credit the alternate juror's explanation for why she had lowered her head. Cf. Washington v. State, 285 Ga. 541, 544, 678 S.E.2d 900 (2009) (holding that trial counsel was not deficient for failing to respond properly to sleeping jurors where the defendant failed to show that the jurors were sleeping).

Second, there is no evidence that the juror who checked his cell phone used the phone for any case-related purpose that might have impacted Greene's right to a fair trial. The record suggested the opposite, as the juror's explanation that he had used his cell phone to check a message from his mother indicated that he had used the phone for a personal purpose unrelated to the merits of the case. And the trial court appropriately reminded the juror not to bring his cell phone back to the courtroom. Cf. Saffold v. State, 298 Ga. 643, 649, 784 S.E.2d 365 (2016) (holding that a mistrial was not mandated where there was no “proof of any real problem” regarding jurors passing notes, the contents of which were unknown, and the court “remind[ed] the jurors not to communicate about the case before deliberations”).

Finally, Greene has not presented any evidence as to what, if anything, jurors communicated to each other when the trial court noticed that jurors might be talking to each other, nodding to each other, or looking at each other's notes. The trial court took reasonable remedial action in response to these apparent issues, reminding the jurors not to discuss the case before deliberations or to look at each other's notes. And Greene has not presented any evidence indicating that the jury disregarded the court's reminder. See Cox v. State, 306 Ga. 736, 741, 832 S.E.2d 354 (2019) (holding that trial counsel was not deficient for failing to move for a mistrial based on juror communications before deliberations because “a mistrial was not mandated,” “given the lack of proof of any real problem” and the court's curative actions, including the court's reminder to the jurors not to discuss the case before its conclusion (cleaned up)).

Because Greene “has not established that a mistrial was essential to preserve his right to a fair trial,” he has not shown that the trial court would have granted a motion for mistrial if trial counsel had moved for one. Brown v. State, ––– Ga. ––––, ––––, ––– S.E.2d –––– (2026), S26A0577, slip op. at 17 (2026 WL 1868479). And as a result, Greene has not shown deficient performance. See id.

(b) Greene also claims that his trial counsel was constitutionally ineffective for failing to call GBI Special Agent Andrew Albertson as a witness at trial. As explained below, however, Greene has not shown deficient performance.

By way of background, the State presented testimony from Albertson at a preliminary hearing because the case agent assigned to Greene's case was not available to attend the hearing. Albertson testified that he arrived at the crime scene after White's body had been taken away and that his role in the investigation was to interview certain witnesses. When asked how many times White had fired his gun, Albertson responded, “I'm not exactly familiar with how many both [White and Greene] shot. I knew there were multiple — multiple shell casings, or multiple — multiple rounds of two different calibers.”

In his amended motion for new trial, Greene claimed that trial counsel was ineffective for failing to call Albertson as a witness at trial. When asked at the motion-for-new-trial hearing about his failure to call Albertson as a trial witness, trial counsel testified in relevant part that Albertson was “testifying to what other people told him,” that Albertson was not involved in the collection of evidence at the crime scene, and that counsel could not have elicited testimony from Albertson about cartridge cases at trial due to the hearsay rules.

Although Greene raised this ineffective-assistance-of-counsel claim in his amended motion for new trial and did not abandon it in his supporting brief or at the motion-for-new-trial hearing, the trial court failed to rule on the claim in its order denying Greene's motion for new trial. “[W]e often remand for consideration of unresolved issues,” but “a remand is unnecessary here because we can determine from the record” that Greene cannot establish ineffective assistance of counsel. Stitts v. State, 323 Ga. 109, 118, 922 S.E.2d 790 (2025).

Greene contends that trial counsel should have called Albertson to testify about the types of cartridge cases found at the crime scene because his testimony at the preliminary hearing that more than one type of cartridge case was found at the crime scene would have supported Greene's justification defense. But it is clear from the transcript of the preliminary hearing that Albertson was not involved in collecting physical evidence from the crime scene, that he had no personal knowledge of what cartridge cases were found, and that he was testifying about cartridge cases based on what others had told him. Accordingly, any testimony about cartridge cases that Albertson might have offered at trial would have been hearsay. See OCGA § 24-8-801(c) (“ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). And because Greene has not identified any hearsay exception that would have made Albertson's testimony admissible, he has not shown that trial counsel was deficient for failing to call Albertson to testify at trial. See Patterson v. State, 314 Ga. 167, 176, 875 S.E.2d 771 (2022) (holding that defendant had not shown that trial counsel was deficient for failing to call an officer as a witness because the officer's testimony would have been hearsay and the defendant “ha[d] not demonstrated that [the officer's] proposed testimony would have been admissible at trial”); Park v. State, 314 Ga. 733, 744, 879 S.E.2d 400 (2022) (holding that trial counsel was not deficient for failing to present testimony where the defendant “failed to establish that the testimony ․ would have been admissible at trial under an exception to the hearsay rule”).

Judgment affirmed.

FOOTNOTES

1.   The shooting occurred on December 5, 2019. On December 2, 2020, a Sumter County grand jury returned a three-count indictment, charging Greene with felony murder (Count 2) and aggravated assault (Count 1) and charging Eric Kyshon Davis with hindering apprehension or punishment of a criminal (Count 3). Greene was tried separately before a jury from November 29 through December 2, 2021. The jury found Greene guilty as charged. The trial court sentenced Greene to life in prison with the possibility of parole for felony murder and merged the aggravated assault count for sentencing purposes. Greene timely filed a motion for new trial on December 8, 2021, and amended the motion through new counsel on August 15, 2024. Following a hearing, the trial court denied the motion for new trial in an order that was filed twice, both on December 4 and December 9, 2025. Greene timely filed a notice of appeal directed to this Court on December 10, 2025. The case was docketed to this Court's April 2026 term and submitted for a decision on the briefs.

2.   Johnson was not biologically related to White and used the term “brother” only as a term of affection.

3.   The alternate juror was ultimately removed from the panel when she failed to appear for trial the next morning.

Colvin, Justice.

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