---
title: Darby v. State
collection: opinions
id: S26A0892
cite_as: Darby v. State, S26A0892 (Ga. Oct. 14, 2026)
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date: 2026-10-14
status: published
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docket: S26A0892
court: Supreme Court of Georgia
case_type: criminal appeal
case_name_full: Tony Darby v. The State
authoring_justice: LaGrua
disposition: Affirmed
vote: All the Justices concur
word_count: 3791
date_filed_source: opinion_text
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legal_areas:
  - criminal law
  - constitutional law
upstream_id: ga-s26a0892
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---

# Darby v. State

Supreme Court of Georgia, docket S26A0892, filed 2026-10-14.

## Opinion

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

No. S26A0892

Tony Darby

v.

The State

On Appeal from the Superior Court of Richmond County

No. 2019RCCR01102

Decided: October 14, 2026

LAGRUA, Justice.

Appellant Tony Darby challenges his 2023 convictions for felony murder and possession of a firearm during the commission of a crime in connection with the shooting death of Sanquan Sims. 1 Darby contends that the trial court erred by not giving his requested charge on voluntary manslaughter and that his trial counsel was constitutionally deficient for failing to object to

1 The crimes occurred on May 23, 2019. On August 6, 2019, a Richmond County grand jury indicted Darby and Patrick Noble for malice murder, felony murder predicated on aggravated assault, and possession of a firearm during the commission of a crime. At a joint trial from January 30 to February 2, 2023, the jury found Darby guilty of felony murder and the firearm count and acquitted him of malice murder; Noble was acquitted of all charges. The trial court sentenced Darby to serve life in prison without the possibility of parole for felony murder and a consecutive term of five years in prison for the firearm count. Darby filed a timely motion for new trial, which he amended with new counsel on June 10, 2025. After an evidentiary hearing on June 25, 2025, the trial court entered an order denying the motion on September 10, 2025. Darby filed a timely notice of appeal, and the case was docketed in this Court to the

April 2026 term and submitted for a decision on the briefs.

testimony about his failure to come forward during the investigation, object to the admission of a photograph that allegedly showed Darby’s connection to a gang, and object to parts of the prosecutor’s closing arguments. For the reasons explained below, his claims fail, and we affirm.

The evidence at trial showed that Sims was fatally shot on May 23, 2019, at the Magnolia Park apartment complex in Richmond County. A few days before the shooting, Darby’s co- defendant Patrick Noble accused Sims of selling him fake Percocet pills and demanded that Sims repay him $300; Sims refused to return the money. Noble and Sims exchanged Facebook messages for several days. These messages contained references to two gangs that Noble and Sims were associated with, the Gangster Disciples and the Crips, respectively. Noble also exchanged Facebook messages with Sims’s brother and another member of the Crips gang who was close friends with Sims, saying Sims had sold “fake” drugs and was making “[the Crips] look bad.” Approximately two hours before the shooting, Sims messaged Noble “WYA?,” meaning “where you at,” and Noble responded at 5:01 p.m., stating that he was at the Magnolia Park apartments. The shooting happened a few minutes later.

Tanika Martin, a resident of Magnolia Park who knew Darby, Noble, and Sims, witnessed the shooting, which happened about five feet from her apartment door. Martin spoke to law enforcement officers later in the evening and identified Darby and Noble “as being involved in the shooting.” At trial, Martin identified Darby as the shooter and said that Sims did not have a gun when Darby “shot him to the ground.” She further testified that, after shooting Sims, Darby ran behind one of the apartment buildings. According to Martin, after Darby ran behind the apartment building, Noble “ran up” and fired shots at Sims as he lay on the ground. Noble then ran behind the apartment building and got into a burgundy car and fled the scene. Sims died as a result of multiple gunshot wounds.

Neither Darby nor Noble testified at trial, but Noble called Brandon Curry, who provided a different account of the shooting than Martin provided. According to Curry, he was sitting in a parked car with Noble when the shooting occurred. According to Curry, Sims approached the passenger side of the car where Noble was sitting. Sims was wearing a bandana over his face and pointed a gun at Noble and said, “B**ch-ass n**ga.” Noble replied, “You gonna shoot me, bro? You gonna shoot me.” Curry then heard gunshots, jumped out of the car, and ran behind the apartment building. He did not see who was shooting. According to Curry, Noble did not have a gun.

The State presented evidence from Darby’s cell phone records showing that, on May 23 around 2:25 p.m., Darby’s phone texted with someone, who was not identified, and asked that person to meet at the Magnolia Park apartments. Location data from Darby’s cell phone records showed his phone arriving at the Magnolia Park apartments at approximately 2:30 p.m. and not leaving the apartment complex until 5:25 p.m.

Law enforcement officers recovered nine 9mm cartridge cases at the scene of the shooting, and the medical examiner removed four 9mm bullets and bullet fragments from Sims. The 9mm cartridge cases were fired from the same gun and were consistent with being fired from a Glock firearm. The 9mm bullets and fragments recovered by the medical examiner were also consistent with having been fired by a Glock. At the scene, officers also recovered two .38 caliber bullets that had been fired by the same gun but could not have been fired from the gun that discharged the 9mm cartridge cases. No weapons matching the 9mm cartridge cases and bullets or the .38 caliber bullets were ever found.

Law enforcement officers were not able to immediately apprehend Darby and Noble, but Noble turned himself in on July 8, 2019. Darby was arrested by United States Marshals approximately two months later, on September 20. At trial, Darby did not testify, but his trial counsel argued that Darby was justified in shooting Sims to defend Noble and that Darby fled because he feared retaliation from members of Sims’s gang. As noted above in footnote 1, Noble was acquitted of all charges.

1. Darby contends that the trial court erred in failing to give his requested jury instruction on voluntary manslaughter. 2 See OCGA § 16-5-2(a). 3 He asserts that the evidence supported giving a voluntary manslaughter charge, including Martin’s and Curry’s testimony that Darby was “only feet away” from the “gun- pointing confrontation directed at Mr. Noble … accompanied by slurs,” and that the jury could find such evidence “provoked an impulsive, heat-of-passion response before there was time for cool reflection.” We disagree.

In a murder prosecution, a trial court must grant a defendant’s request for a charge on voluntary manslaughter “if there is any evidence, however slight, … that the killing occurred

2 Darby objected to the trial court’s refusal to give the instruction and renewed his objection at the conclusion of the final charge.

3 OCGA § 16-5-2(a) states, in pertinent part, that [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.

solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” Hayes v. State, 320 Ga. 505, 520 (2024) (cleaned up). Determining whether there is slight evidence to support the charge is a question of law. See id.

Darby has not cited any cases, and we have found none, where evidence of a violent confrontation not involving the defendant authorized a jury instruction on voluntary manslaughter. In any case, we have held that “neither mere words, nor fear for one’s safety, nor fighting are the types of provocation that demand a voluntary manslaughter charge.” Jivens v. State, 317 Ga. 859, 862 (2023). Here, the evidence that Sims confronted Noble with a gun and cursed at him while Darby happened to be nearby does not constitute serious provocation sufficient to excite the passions of a reasonable person in Darby’s position. We have previously concluded that similar circumstances of a heated confrontation do not warrant a voluntary manslaughter instruction even when the defendant is directly involved in the argument. See Wilkerson v. State, 317 Ga. 242, 247 (2023) (explaining that an instruction on voluntary manslaughter was not authorized by evidence that the defendant and one victim “were involved in a heated argument during which [the victim] pursued, verbally abused, and threatened to harm [the defendant]”); Burke v. State, 302 Ga. 786, 790–91 (2018) (explaining that an instruction on voluntary manslaughter was not warranted where the defendant testified that the victim “threatened [him] with nunchucks,” explaining that “acting out of fear of bodily harm is not the same as acting in the heat of passion, and only evidence of the latter supports a voluntary manslaughter conviction”). Thus, the trial court did not err in declining to instruct the jury on voluntary manslaughter here, especially where Darby was not directly involved in the confrontation between Sims and Noble. Accordingly, this claim fails. 2. Darby asserts that his trial counsel was constitutionally deficient for failing to object to an investigator’s testimony and the admission of a photo from Darby’s Facebook page and by failing to object to two aspects of the prosecutor’s closing argument. For a defendant to succeed on his claim of ineffective assistance of counsel, he must establish both that his counsel performed deficiently and that he was prejudiced by this deficient performance. See Strickland v. Washington, 466 US 668, 687 (1984). To satisfy the deficiency prong, a defendant “must show that his lawyer performed in an objectively unreasonable way, which generally means showing that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not.” Fadesire v. State, 324 Ga. 1, 2–3 (2026) (cleaned up). Additionally, we have explained that “[d]ecisions regarding trial tactics and strategy … may form the basis for an ineffectiveness claim only if such decisions are so patently unreasonable that no competent attorney would have followed the same course.” Strong v. State, 323 Ga. 737, 748 (2026). To demonstrate prejudice, “a defendant must show that, but for counsel’s deficient performance, there was a reasonable probability that the result of the trial would have been different.” Fadesire, 324 Ga. at 3 (quotation marks omitted).

(a) The testimony related to Darby’s failure to “come forward” was elicited during the following exchange between the prosecutor and Richmond County Sheriff’s Investigator Chris Langford:

[PROSECUTOR]: So all these months, from May to July to September, did [Darby and Noble] ever come forward or try to make contact with you?

[INVESTIGATOR LANGFORD]: They did not.

[PROSECUTOR]: Did they ever try and explain how the shooting took place?

[INVESTIGATOR LANGFORD]: They did not.

[PROSECUTOR]: Did he ever say, “I was trying to defend someone else”?

[INVESTIGATOR LANGFORD]: They did not.

[PROSECUTOR]: Did they ever say that Sanquan Sims had a gun?

[INVESTIGATOR LANGFORD]: They did not.

When questioned at the hearing on the motion for new trial about why she did not object to this testimony, trial counsel explained that she knew that evidence that Darby was not arrested until several months after the murder “was going to come out” and that Investigator Langford’s testimony was consistent with the defense strategy to show that Darby acted in defense of others and to show “how terrified [Darby] was of the situation, which is why he didn’t [come forward after the shooting].” Trial counsel further testified, “I felt that [the testimony] did support my argument later … when we addressed the fact that he fled.” And the record shows that trial counsel argued in closing that Darby did not come forward because he “was scared of … retaliation. Sanquan Sims was a Crip. [Darby] is not in a gang.” We see no basis for concluding that trial counsel was deficient in these circumstances, even assuming that Investigator Langford’s testimony was objectionable. See State v. Orr, 305 Ga. 729, 739 (2019) (noting that whether evidence of a defendant’s “failure to come forward” is admissible will often be “much harder” to determine under the current Evidence Code than under prior law). Trial counsel’s decision not to object to evidence that was consistent with the defense theory of the case— and was consistent with the arguments that counsel planned to make (and did make) to the jury—was not so patently unreasonable that no competent attorney would have made the same decision. See Piercefield v. State, 932 SE2d 26, 38 (Ga. 2026) (concluding that trial counsel was not deficient in failing to object to a detective’s testimony that indirectly referenced the defendant’s right to remain silent, noting that the testimony was consistent with the defendant’s theory of the case). Thus, Darby has failed to meet his burden to show that his trial counsel performed deficiently in this regard.

(b) The evidence arguably showing Darby’s connection to a gang was admitted through an investigator who testified as a gang expert. During the investigator’s testimony, the State introduced into evidence a photo of Darby standing with three other people, one of whom was wearing a T-shirt with the words, “OWTT GANG SHIT ONLY”; the photo had been posted to Darby’s Facebook account approximately three years before Sims’s murder. The investigator testified that OWTT was a “local gang,” and Darby’s trial counsel elicited on cross-examination that Darby was not wearing any “gang-related” clothing or making “any hand signs.” 4

4 The gang expert’s testimony on direct examination spanned approximately 35 pages of transcript and focused on Noble and Sims’s affiliations with rival gangs and their online arguments with each other and other gang members; the testimony about the “OWTT Gang” photo was covered in about two pages of transcript. It is unclear why the State offered the “OWTT

At the hearing on the motion for new trial, trial counsel explained why she did not object to the photo, testifying that she made a “strategic” decision not to object to the photo because she “wanted it to come in for the purposes of being able to compare … [Darby’s] level of involvement against that of the co-defendant.” And the record shows that in her closing argument, trial counsel highlighted the gang expert’s testimony about the gang affiliations of Noble and Sims and argued that there was no similar evidence connecting Darby to a gang—just “a photo from 2016 of Tony Darby with multiple other people, where Tony Darby is not wearing anything that indicates he’s in a gang, where Tony Darby is not throwing up any gang signs or anything like that.”

Given trial counsel’s strategy to contrast the limited evidence of Darby’s connection to a “local gang” with the evidence of Noble’s and Sims’s more extensive gang connections, we cannot say that the decision not to object to the photo was patently unreasonable. See Sharpe v. State, 310 Ga. 254, 257–58 (2020) (concluding that trial counsel was not deficient in failing to object to agent’s testimony where testimony was consistent with the defense theory and allowed trial counsel to use the testimony to support that theory); Griffin v. State, 309 Ga. 860, 867 (2020) (“Given counsel’s founded, reasonable belief that [the defendant] was best served by using this evidence to his advantage instead of objecting to it, counsel’s decision amounted to reasonable trial strategy that does not constitute deficient performance.”). Thus, this claim of ineffectiveness fails.

(c) Darby also argues that trial counsel was deficient in

Gang” photo into evidence as there was no testimony that Noble or Sims had any connection to or rivalry with that gang; nor was Darby charged with any offenses under the Street Gang Terrorism and Prevention Act.

failing to object to two aspects of the prosecutor’s closing argument. In considering claims of ineffectiveness of trial counsel for failing to object to a prosecutor’s closing argument, we note that it is well-settled that “[a] prosecutor is granted wide latitude in the conduct of closing argument,” and “[a] closing argument is to be judged in the context in which it is made.” Thompson v. State, 318 Ga. 760, 767–68 (2024) (quotation marks omitted). Moreover, “whether to object to a particular part of a prosecutor’s closing argument is a tactical decision, and counsel’s decision not to make an objection must be patently unreasonable to rise to the level of deficient performance.” Id. at 768 (cleaned up). Finally, we note that “[t]he permissible scope of argument is vast” and that “counsel may draw from the evidence properly before the factfinder any inference apparently reasonable and legitimate.” Morgan v. State, 267 Ga. 203, 203 (1996) (quotation marks omitted).

(i) With regard to the first claim of ineffectiveness relating to the closing argument, the record shows that in his rebuttal argument, the prosecutor referenced the “OWTT GANG” T-shirt and argued: “Gangship. You saw it. It was on the T-shirt. Where do you go when you need to hide out? You go to your homies. You go to your boys. That’s where he went….” At the motion-for-new- trial hearing, trial counsel was not asked why she did not object to this comment. Nevertheless, we conclude that a competent attorney may have reasonably determined that the prosecutor’s suggestion that Darby was hiding with gang members was a permissible inference given the evidence that Darby eluded capture for several months and that any objection on that basis would have been denied. See Almond v. State, 324 Ga. 515, 521 (2026) (concluding that trial counsel was not deficient in failing to object to the prosecutor’s comments in closing arguments about the veracity of witnesses given that “a competent attorney may have reasonably determined that the prosecutor’s comments were well within the scope of the wide latitude granted prosecutors to argue reasonable inferences from the evidence”). Thus, this claim fails. (ii) With regard to the second claim of ineffectiveness relating to the closing argument, the record shows that the State presented evidence of the contents of Darby’s cell phone records, including that after the shooting, Darby’s phone received text messages stating, “Please, baby let me help you” and “If you’re out there, you need to turn yourself in; you don’t want to be considered a fugitive.” At the beginning of his closing argument, the prosecutor said, “let’s talk about the defendants real quick,” and after talking about Noble briefly, turned to discussing Darby. In an argument spanning less than one trial transcript page, the prosecutor pointed out that Darby’s cell phone records placed him at the scene of the shooting; that on the same day, Darby “turned his phone off so that no one could track him down”; that Darby “was on the run for 122 days”; and that while there was evidence of text messages Darby received encouraging him to turn himself in, “[n]ot once was there a message, though, saying, ‘You didn’t do anything wrong[]’ … because everybody knows. Everybody knows what he did, that he murdered Sanquan Sims, that he shot at him several times.” The prosecutor immediately shifted gears to “talk about the law,” and went through the elements of the offenses set forth in the indictment.

Darby contends that trial counsel should have objected when the prosecutor argued that “everybody knows … that he murdered” Sims because that argument was improper “reputational hearsay” that was “extrinsic and prejudicial.” However, the prosecutor’s statement “everybody knows” was a very brief, rhetorical comment based on the text messages in which third parties urged Darby to turn himself in and was made while giving an outline of evidence from Darby’s cell phone records showing that he was at the scene of the shooting, fled from the scene, and took steps to avoid detection. See Morgan, 267 Ga. at 203. And when considered in this context, we note that, generally, a defendant’s flight from the scene of the crime is circumstantial evidence of guilt. See Jenkins v. State, 313 Ga. 81, 89 (2022). Additionally, the trial court had indicated in the charge conference that it would instruct the jury that closing arguments are not evidence, and the record reflects that the trial court gave that instruction.

In light of the context in which the brief comment was made and the anticipated jury instruction, we conclude that the failure to object was not such a patently unreasonable decision that no reasonable lawyer would have failed to make an objection. See Fadesire, 324 Ga. at 4 (concluding that trial counsel was not deficient in failing to object to prosecutor’s comment in closing that “I know who did it”); Thompson, 318 Ga. at 768 (concluding that trial counsel was not deficient in failing to object to the prosecutor’s argument in closing that “there has been no evidence exonerating [Appellant]”). Thus, Darby has not met his burden to show that his trial counsel was deficient in this regard. 5

5 Darby also contends that his trial counsel was deficient in failing to “object to the prosecutor’s use of Mr. Darby’s pre-arrest silence as evidence of guilt.” However, Darby does not identify the allegedly improper comment, and the record cite he provides is to the prosecutor’s argument that Noble “never once came in and said, ‘Here’s what happened, here’s my story.’” Moreover, even assuming that the prosecutor’s argument about Noble’s failure to come forward could be construed as implicating Darby as well, Darby did not raise this argument as a basis for his claim of ineffective assistance at the motion- for-new-trial stage, when he had new counsel. Therefore, Darby has not

Accordingly, Darby’s claims of ineffectiveness fail. 6 Judgment affirmed. All the Justices concur.

preserved for review his claim that trial counsel was deficient in not challenging the prosecutor’s closing argument on the basis that it was a comment on pre-arrest silence. See Strong, 323 Ga. at 749.

6 On the last page of his appellant’s brief, Darby makes a cursory argument that reversal is required under the cumulative error rule of State v. Lane, 308 Ga. 10, 14 (2020). Assuming, without deciding, that his brief argument is sufficient to preserve a cumulative error claim, Darby has not established the existence of any trial court errors, and we have concluded that trial counsel did not perform deficiently in any of the ways challenged. Thus, there is nothing to assess cumulatively. See Scott v. State, 321 Ga. 701, 716 (2025). Accordingly, this claim fails.

## Summaries written by Georgia Commons

The following was written by claude-sonnet-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary.

The Supreme Court of Georgia upheld a Richmond County man's felony murder conviction, rejecting his argument that the jury should have been told it could convict him of the lesser crime of voluntary manslaughter and his claims that his trial lawyer botched the case.

### Plain-language summary

Tony Darby was convicted of felony murder and a firearm offense after a Richmond County jury found he shot and killed Sanquan Sims during a dispute connected to rival gangs. His co-defendant, who allegedly fired more shots at Sims afterward, was acquitted. Darby appealed, arguing the trial judge should have instructed the jury on voluntary manslaughter (a lesser charge for killings committed in the heat of passion) because Sims had confronted the co-defendant with a gun shortly before Darby fired.
Darby also argued his trial lawyer was constitutionally ineffective for not objecting to testimony about his months-long failure to turn himself in, a Facebook photo suggesting gang ties, and parts of the prosecutor's closing argument. The Supreme Court of Georgia disagreed on every point, finding the confrontation did not legally qualify as serious provocation and that his lawyer's choices were reasonable trial strategy, not deficient performance. It affirmed his conviction.

### Holding, as summarized

The trial court properly refused a voluntary manslaughter instruction because a violent confrontation involving someone other than the defendant does not constitute serious provocation to him, and trial counsel's strategic decisions not to object to certain testimony and closing argument comments were reasonable, not constitutionally deficient.

### Disposition

Affirmed. All the Justices concur.

### Why it matters

The ruling reinforces how narrowly Georgia courts read the voluntary manslaughter defense, limiting it to direct, serious provocation of the defendant himself. It also illustrates the high bar defendants face when challenging their own lawyers' strategic choices, guiding future ineffective-assistance claims across Georgia trial and appellate courts.

> The summarized reasoning, checked quotes, suggested questions (2,138 characters) are at https://georgiacommons.org/opinions/S26A0892.md?full=1