HENSLEY v. STATE (2026)

In March 2024, Ruben Hensley was convicted of malice murder and other crimes related to the shooting death of Marjester Thornton, III. Hensley appeals his convictions, arguing that the trial court abused its discretion by denying his motion for a continuance before trial and that his counsel provided ineffective assistance when she introduced evidence that undermined his voluntary manslaughter defense. Because Hensley has failed to show that the trial court's denial of the continuance harmed him or that his counsel's performance was deficient, we affirm his convictions.¹

1. The evidence presented at Hensley's trial showed the following. Around 9:30 p.m. on September 25, 2021, a red Mustang pulled up in front of Thornton's neighbor's house in Columbus. The neighbor had not seen that car in the area before. The Mustang drove down the street and “sat a few minutes” at a four-way stop. Then the car “backed up and park[ed]” on the street with its lights off. Shortly thereafter, the neighbor, who had stopped watching the car, “heard gunshots.” Around the same time the neighbor saw the Mustang, Thornton, who had been inside his house with his parents, walked outside while talking on the phone. “A few minutes later,” Thornton's mother heard three gunshots. Thornton's parents ran outside and saw Thornton lying next to his car, dead from a gunshot wound. About three and a half hours later, a red Mustang owned by Hensley was found on fire at the dead end of a road in Columbus. Later testing showed that the fire was “intentionally set.”

Cell phone location data showed that Hensley's cell phone was in the area of the shooting at the time of the shooting, and was in the area of the car fire at the time of the car fire. Cell phone records also showed that Thornton's and Hensley's phones exchanged two calls immediately before the shooting, with one call lasting from 9:07 to 9:25 p.m. and the other lasting from 9:26 to 9:34 p.m. In total, there were ten “calls or attempted calls” between Hensley's and Thornton's phones on September 25. Based on this cell phone data, Hensley was arrested.

Thornton had a close relationship with Hensley and with Hensley's wife, Jasmine Hall, from whom Hensley was separated. In the months preceding the shooting, Thornton's family and friends expressed some concern that Thornton and Hall “had been spending too much time” together. Thornton and Hall also exchanged frequent text messages, and Hall testified that she and Thornton “talked almost every day” in the month of the shooting. Hensley lived and worked mainly outside of Georgia, but he stayed with Hall when he was in Columbus, including during the week leading up to the shooting. On the morning of the shooting, Hensley left Hall's house and drove to Atlanta because he had a ticket to fly to Maine for work, but he drove back to Columbus later that day.

At trial, Hensley's counsel conceded that Hensley shot Thornton, but argued that the shooting was voluntary manslaughter because Hensley acted out of sudden passion after discovering that Thornton and Hall were having an affair. The jury rejected this defense and found Hensley guilty of malice murder and related crimes.

2. Hensley argues that the trial court abused its discretion by denying his motion for a continuance.

(a) Hensley was arrested in December 2021 and indicted in December 2023. According to Hensley's trial counsel, the State gave her the “majority of the discovery” on December 26, 2023, soon after Hensley was indicted. This discovery included a four-page report from the State's cell phone expert about the location of Hensley's phone around the time of the crimes. After 5:00 p.m. on March 4, 2024 (seven days before trial), the State sent a new, 24-page expert report to Hensley's trial counsel. This report, written by the same expert as the four-page report, included more general information about how cell phone locations are determined and provided a slightly more detailed map of the movements of Hensley's phone for a longer time span. The State represented that it had received this report from its expert that day.

After receiving this report, counsel requested a continuance to give her more time “to consult with and have the opportunity to retain an expert ․ to understand and respond to” the report. The trial court denied the motion. Counsel later renewed her motion, explaining that she had received some assistance in understanding the recently disclosed report from an expert but that expert did not have enough time to fully analyze the report. Counsel also argued that because of the delay between Hensley's arrest and indictment, she had most of the discovery evidence for only 70 days, whereas the State “had 800 days to prepare their case.” The court gave Hensley's counsel additional time to speak with the State's expert before trial began, but denied the motion for a continuance. At trial, the State did not introduce the 24-page report but instead relied on the earlier disclosed four-page report.

At the motion for new trial hearing, Hensley's trial counsel testified that the “main purpose of the continuance request” was to talk to an expert about the report disclosed seven days before trial. Neither trial counsel nor any other witness at the hearing testified as to what further evidence or argument could have been developed at trial if the continuance had been granted. When the trial court asked Hensley's appellate counsel if there was “anything in those [cell phone] records that would have been exculpatory for [Hensley],” counsel responded: “I don't know of anything necessarily that would have cleared him without having that expert testify.” No expert testified at the motion for new trial hearing.

(b) A request for a continuance is “addressed to the sound legal discretion of the court.” OCGA § 17-8-22. Even if a defendant makes “a clear showing” that the trial court abused its broad discretion by denying a motion for continuance, “to be entitled to a new trial based upon the denial of a motion for a continuance, a defendant has the burden to show that he was harmed by that denial.” Phoenix v. State, 304 Ga. 785, 788 (2018) (quotation marks omitted).

Pretermitting whether the trial court here clearly abused its discretion by denying Hensley's continuance motion, Hensley's claim fails because he has not shown he was harmed. He argues that a continuance was necessary to allow his counsel more time to review the evidence and to procure an expert to fully analyze the 24-page expert report. However, Hensley has made no showing as to what additional arguments or evidence counsel would have discovered if given more time to review the evidence, nor has he shown what expert would have been hired, “what his or her testimony would be expected to show, or how that testimony would benefit” Hensley, particularly in light of the fact that the 24-page expert report was not used by the State at trial. Phoenix, 304 Ga. at 788 (quotation marks omitted). Thus, Hensley has failed to show he was harmed by the denial of the continuance. See id. See also Clark v. State, S26A0062, 2026 WL 1541090, at *8 (Ga. June 2, 2026) (holding that the appellant failed to show he was harmed by the trial court's denial of a continuance because “he has not pointed to any evidence showing that a grant of his motion to continue the trial would have enabled other experts and further investigation to turn up additional support for his claim of incompetency or further mitigation evidence”); Platt v. State, 319 Ga. 1, 10 (2024) (holding that the appellant failed to show harm from the denial of his motion for a continuance after the untimely disclosure of an interview recording because although he argued “that he needed more time to study the recording and prepare, ․ he made no showing how additional time would have benefitted him”).

3. Hensley next argues that because the evidence that he drove from Atlanta to Columbus before the shooting undermined his voluntary manslaughter defense by indicating that there was a “cooling-off period” before the shooting, trial counsel provided ineffective assistance by introducing this evidence.²

(a) During the trial, Hensley's counsel elicited testimony from Hall that on the morning of the shooting, Hensley went to Atlanta because he had a ticket to fly to Maine, where he was working at the time. Counsel also introduced evidence that in addition to exchanging 10 calls with Thornton on the day of the shooting, Hensley made 16 unanswered calls to Hall, and at 1:05 p.m. on the day of the shooting, Hall sent Thornton a text message saying “I called to tell you about this morning,” and two messages at 3:53 p.m., saying “Called [sic] me” and “ASAP.”

Based on this evidence, Hensley's trial counsel argued the following in closing argument. On the day of the shooting, Hensley drove to Atlanta planning to fly to Maine but then “something changed.” The text message from Hall to Thornton telling him to call her “ASAP” showed that Thornton and Hall “got tipped off” that Hensley had “found out about something.” What Hensley “found out” was that Thornton and Hall were having an affair. Hensley then “start[ed] trying to find people ․ to call people,” but Thornton and Hall “stopped taking [Hensley's] calls.” So Hensley thought: “I've got to get to [Thornton]. I've got to get to my wife. I've got to get to Columbus. I've got to find what is going on, I need answers.” According to trial counsel's proffered theory, Hensley began driving back to Columbus, and as he was driving:

[H]e saw red. ․ [He felt] betrayal that built and built and built and built. It snowballed. The longer someone goes without being able to get answers, without being able to talk to anyone, your best friend, it builds. It doesn't calm. You don't calm down. ․ It gets stronger, that emotion.

Then, when Hensley finally saw Thornton, “it happened so fast,” he “s[aw] the person that's supposed to be the most loyal, trusted—[and] pull[ed] the trigger.” Thus, Hensley was guilty only of voluntary manslaughter.

In response, the prosecutor argued in closing that the drive from Atlanta to Columbus is “a long drive, especially with traffic. Sufficient time to cool off.” She also argued that Hensley had a chance to drive away when the neighbor saw his Mustang but instead decided, “no, I'm waiting. I'm waiting for my shot.” The jury was instructed on the definition of voluntary manslaughter, including: “If you decide that enough time passed between the provocation and the killing for a reasonable person to have cooled off and retained judgment, then the killing is not voluntary manslaughter.” At the motion for new trial hearing, Hensley's trial counsel testified that she discussed Hensley coming back from Atlanta because she wanted “to show that his intention was to have the plane ticket and go to work” and that plan changed only because Hensley found out about “what he believed to be this affair” and “was unable to get in touch with [Thornton and Hall].”

(b) To prevail on his claim of ineffective assistance of counsel, Hensley must prove both that his counsel's performance was deficient and that this deficient performance resulted in prejudice. See Strickland v. Washington, 466 US 668, 687 (1984). If either prong is not met, “this Court need not examine the other prong.” Fraser v. State, 322 Ga. 544, 547 (2025) (quotation marks omitted). “To prove deficient performance, a defendant must show that his attorney performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms.” Id. at 546 (cleaned up). Decisions “regarding trial tactics and strategy” can constitute deficient performance “only if they were so patently unreasonable that no competent attorney would have followed such a course,” and in considering this question, “every effort [must] be made to eliminate the distorting effects of hindsight.” Id. (quotation marks omitted). Hensley has failed to show that his counsel's performance was deficient.

In light of the strong evidence that Hensley shot Thornton, his trial counsel chose to argue that Hensley committed only voluntary manslaughter based on his discovery of his friend's relationship with his wife. See OCGA § 16-5-2 (“A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.”). See also Allen v. State, 319 Ga. 415, 421 (2024) (“Our case law has long recognized that discovering a partner's infidelity is generally sufficient provocation to warrant a charge on voluntary manslaughter.”).

It is true that, as the State argued in closing, the jury could have determined that the time it took Hensley to drive from Atlanta to Columbus was a sufficient cooling off period to preclude a finding of voluntary manslaughter. See OCGA § 16-5-2 (“[I]f there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.”). See also Merritt v. State, 310 Ga. 433, 441 (2020) (describing the “several hours” between the alleged provocation and the shooting as “ample time to cool any passions heated by the earlier altercation”). But trial counsel attempted to refute the State's argument that Hensley had time to “cool off” by arguing that during the drive from Atlanta to Columbus—when Hensley could not get in touch with Thornton or Hall—Hensley's emotions “built and built,” “get[ting] stronger,” rather than “calm[ing] down.” And, as counsel explained at the motion for new trial hearing, the evidence that Hensley was in Atlanta at the beginning of the day helped show his lack of premeditation: he was about to leave Georgia and returned only because he learned information about Thornton and Hall that provoked strong emotions.

Although counsel's strategy ultimately did not persuade the jury, it was not objectively unreasonable, so Hensley has not shown deficiency and his claim of ineffective assistance of counsel fails. See Fraser, 322 Ga. at 552 (holding that counsel's decision to elicit the defendant's testimony about his “troubles as a juvenile for the purpose of casting him in a more sympathetic light” was not objectively unreasonable, even though the “strategy may in hindsight be easily criticized and indeed may have backfired” (quotation marks omitted)); Redding v. State, 311 Ga. 757, 765 (2021) (holding that although eliciting a statement from the defendant that he regretted the shooting may have “open[ed] the door” to the admission of damaging testimony about the defendant's jail calls, “[i]n light of the evidence presented against Redding, trial counsel's strategic choices were limited, and we cannot say that the decision to elicit this testimony requires a finding of deficiency”).

FOOTNOTES

1.   Thornton was killed in September 2021. In December 2023, a Muscogee County grand jury indicted Hensley for malice murder, felony murder, aggravated assault, possession of a firearm during the commission of a felony, arson, and tampering with evidence. At a jury trial in March 2024, the State nolle prossed the tampering with evidence charge, and the jury found Hensley guilty of the remaining counts. Hensley was sentenced to serve life in prison without parole for malice murder, with an additional 15 years in prison for the firearm possession and arson counts. The remaining counts were vacated or merged. Hensley timely filed a motion for new trial and amended it with new counsel in February 2025. After an evidentiary hearing, the trial court denied Hensley's motion in July 2025. Hensley filed a timely notice of appeal to this Court. The appeal was docketed to this Court's April 2026 term and submitted for a decision on the briefs.

2.   Hensley also argues that we should remand his case based on this claim because although he raised this claim of ineffective assistance of counsel in his motion for new trial, the trial court failed to rule on it. However, a remand is not required because, as discussed below, we can conclude from the record before us that counsel's performance was not deficient. See Stitts v. State, 323 Ga. 109, 118 (2025) (holding that although the trial court did not rule on a claim of ineffective assistance of counsel raised by the appellant, “a remand is unnecessary here because we can determine from the record that Stitts cannot meet” the test to show ineffective assistance of counsel).

Warren, Presiding Justice.

Judgment affirmed. All the Justices concur.