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Hardy v. State

Supreme Court of Georgia

September 3, 2019



         Appellant Travaris Hardy was convicted of malice murder and other crimes in connection with the shooting death of Marcus Shirley. He appeals, contending that the evidence presented at his trial was legally insufficient to support his convictions; that his constitutional right to be present was violated because he was absent during a pretrial motions hearing; that his trial counsel provided ineffective assistance by waiving his presence at that hearing; and that the trial court violated his constitutional right to confrontation by permitting certain expert witnesses to testify. We affirm.[1]

         1. (a) Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's trial showed the following. On the morning of August 16, 2008, Shirley and his girlfriend Majidah Whitfield drove from Mississippi to Atlanta with about $1, 400 in cash, hoping to buy a pound of marijuana. Shirley asked his cousin Porsha Hill and her boyfriend Kevin Milton to find someone who could sell Shirley the marijuana. That night, Milton was connected through friends to a man known as "Mario," whom Milton had never met.

         From 11:18 p.m. to 12:19 a.m., several calls were made between Hill's phone and a phone linked to Mario. During the last call, Mario directed Milton to an apartment complex on Alison Court, and Shirley, Whitfield, Hill, and Milton then drove to the complex's parking lot in Whitfield's car. Mario, who was wearing a white shirt, red shorts, and a red hat, approached the car with a small bag of marijuana. Mario said that he did not want to bring the rest of the marijuana outside, so he, Shirley, and Milton walked around a corner and entered an apartment building while Whitfield and Hill waited in the car.

         According to Milton, as he and Shirley followed Mario up a stairwell at the front of the building, he heard a voice say, "You know what time it is. Give it up." Milton then saw at least five men run out of a door on the second level of the building. Mario hit Milton in the head with a gun, and Shirley ran back outside. Mario and some of the men ran after Shirley while two of the assailants pushed Milton outside. Milton then heard a gunshot. One of Milton's assailants eventually left, while the other man, who had his shirt pulled up over his nose to partially cover his face, held Milton at gunpoint, took his phone, and repeatedly kicked him, saying, "Where's the rest of the money at," and "Give me the money." Mario then ran up to the man and said, "We got the money." The man turned to look at Mario and his shirt fell away from his face. Referring to Milton, he asked, "What you want me to do with him?" Mario responded, "Do what you do." The man, with his face still uncovered, pushed Milton behind the building, but when he attempted to shoot Milton, his gun jammed and Milton escaped into the woods.

         Tashina Williams lived on the second floor of an apartment building about 75 to 100 yards away from the parking lot where Shirley and his associates had parked. She heard a gunshot, looked outside, and saw four or five men gathered on Alison Court in front of her building arguing with a man whom she later identified as Shirley. She had seen some of the men before in the neighborhood; one of the men was wearing a red hat. Williams saw the men and Shirley fire several shots at one another; then Shirley collapsed and the rest of the men ran away in different directions. Williams saw that one of the assailants was bleeding from his leg, leaving a blood trail. Another assailant yelled to him, "What's taking you so long?" The injured man replied, "I've been shot!" Williams then saw the man with the red hat come back and help the injured assailant flee across the street. At 12:32 a.m., Williams called 911.

         Meanwhile, from the car, Whitfield and Hill saw Shirley follow Milton and Mario around the corner of the building but seconds later run out toward the entrance of the apartment complex onto Alison Court. Mario and another man ran after Shirley and shot once in his direction. Whitfield and Hill then got out of the car and attempted to find help. After hearing more gunshots, Whitfield and Hill returned to the car, drove out of the apartment complex, and found Shirley lying in the middle of Alison Court. He had been shot three times, once in each leg and once in the torso. His pants and his underwear, where he normally kept his money, were ripped, and of the $1, 400, only a few dollars were left scattered around him. The two women put Shirley in the backseat to drive him to a hospital, but moments later, paramedics arrived. Shirley died from his gunshot wounds on the way to the hospital.

         Investigators found a small amount of marijuana and a Hi-Point 9mm pistol with no clip on the floor of the backseat of Whitfield's car. Investigators also located a red hat near one of the buildings in the apartment complex and a Luger 9mm shell casing in a gutter on Alison Court close to where the fatal shooting occurred. On a nearby sidewalk, they found a blood trail that led across the street, and they took swabbings of the blood. Later that day, the lead detective for the case interviewed Whitfield, Hill, and Williams.[2] He interviewed Milton four days later.[3] The lead detective retired seven months later in March 2009, and the case went cold.

         In May 2010, the police received a tip that Martin Mathews had been involved in Shirley's shooting. The new lead detective on the case then showed Milton a photo lineup containing Mathews's photo, and Milton immediately identified Mathews as the man he knew as "Mario." The detective also submitted the evidence collected from the crime scene for testing. The DNA profile obtained from the blood trail found at the crime scene was uploaded into the Combined DNA Index System (CODIS) and preliminarily matched to Appellant, whose DNA profile was in the system because he was a convicted felon.

         On February 21, 2012, the detective located Appellant after he was arrested on an unrelated charge and interviewed him. When asked if he had ever been shot, Appellant said that he had been shot on Boulevard in 2000 and on Myrtle Drive in 2009. When the detective told Appellant that his blood was found on Alison Court just after Shirley's murder in 2008, however, Appellant said that he had been walking through the apartment complex when he saw two men in a physical altercation; he heard gunshots and ran, but then realized that he had been shot. Appellant claimed that he received medical treatment from a man named "Black" and did not go to a hospital. When the detective asked if Appellant knew Mathews, Appellant said that he just knew Mathews "from [the] Alison Court neighborhood." At trial, the State presented testimony that Mathews's sister was the mother of Appellant's child, and medical records that showed that about a half an hour after Shirley was shot, Appellant went to a hospital emergency room complaining of a gunshot wound to his foot.

         On March 15, 2012, the detective obtained a buccal swab from Appellant; DNA testing then confirmed that the blood trail found at the crime scene came from Appellant. On April 5, the detective showed Milton a photo lineup, and Milton identified Appellant as the man who had held him at gunpoint; Milton repeated that identification at trial. The detective testified that Williams also identified Appellant in a photo lineup as one of the men involved in the shooting, although at trial, Williams was not asked whether she could identify Appellant.

         A medical examiner testified that Shirley had been shot three times - once in his abdomen, once in the right thigh, and once in the left calf. A firearms examiner concluded that two bullets recovered from Shirley's body and the Luger 9mm shell casing found at the crime scene were not fired from the Hi-Point pistol found in the back seat of Whitfield's car and that at least two guns other than the Hi-Point pistol had been involved in the shooting.

         Appellant did not testify. His defense theory was that he was merely a bystander when he and Shirley were shot. To support that theory, he pointed to Williams's prior statement to the police in which she claimed that Appellant was one of the men in Shirley's group, which was attacked by another group of men, and Milton's initial statement to the police in which he could not identify the man who had held him at gunpoint. Appellant argued that Milton had mistakenly identified him, because Appellant could not have held Milton at gunpoint at the same time that Appellant was shot with Shirley 75 to 100 yards away. To rebut that point, the State argued that Shirley and his friends pulled into the apartment complex more than 10 minutes before the time of the 911 call reporting the shooting, and that there would have been sufficient time for Appellant to hold Milton at gunpoint and then, after Milton escaped, to run to the scene of the fatal shooting.

         (b) Appellant contends that the evidence presented at trial and summarized above was legally insufficient to support his convictions because he was merely a bystander when Shirley was shot, Williams did not clearly see the shooting, and Milton did not accurately identify him as the assailant who held Milton at gunpoint. As we have often explained, however, "'the determination of a witness'[s] credibility, including the accuracy of eyewitness identification, is within the exclusive province of the ...

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