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
Decided: February 20, 2024
S23A1096. BLASH v. THE STATE.
BOGGS, Chief Justice.
Appellant Demarcus Deshawn Blash challenges his 2021
convictions for malice murder and other offenses arising out of the
shooting deaths of Jain Marie Williams and her husband Wendell
Everett Williams. Appellant contends that the evidence was not
sufficient and that the trial court erred in denying his motion for
new trial under the “general grounds” in OCGA §§ 5-5-20 and 5-5-
21. Appellant also argues that the trial court abused its discretion
when it overruled his objection to the introduction of his jail phone
call recordings and to expert testimony regarding gang language in
those recordings. Based on these arguments, Appellant seeks a new
trial. Appellant further asserts that the trial court plainly erred by
failing to sentence Appellant “under Georgia law.” Finally, Appellant argues that he was deprived effective assistance of
counsel due to his trial counsel’s failure to object when the trial court
allegedly did not sentence Appellant according to Georgia law.
Based on his last two arguments, Appellant seeks resentencing by a
different trial judge. 1
1 The crimes occurred between April 22 and April 23, 2018. On June 4,
2018, a Dodge County grand jury indicted Appellant, Martez Gordon, Gary Pennamon, and Kojack Thomas, Jr. for two counts of malice murder, two counts of felony murder, home invasion, two counts of armed robbery, two counts of aggravated assault, burglary in the first degree, possession of a firearm during the commission of a felony, and three counts of theft by taking. Alija Pennamon was also indicted for one count of theft by taking. Appellant’s co-defendants either pled guilty or were tried separately from him. At a trial from April 27 to 30, 2021, a jury found Appellant guilty of all counts, except one count of theft by taking for which the State had sought an order of nolle prosequi prior to trial. The trial court sentenced Appellant to serve concurrent sentences of life in prison without the possibility of parole for the malice murders of Jain and Wendell Williams and life in prison with the possibility of parole for home invasion and armed robbery, to run concurrently with each other and consecutively to the malice murder sentences. Additionally, the trial court sentenced Appellant to consecutive terms totaling forty years for burglary in the first degree, two counts of theft by taking, and possession of a firearm during the commission of a felony. The felony murder counts were vacated by operation of law, and the trial court merged the aggravated assault counts into the malice murder convictions. On May 13, 2021, Appellant filed a timely motion for new trial, which he amended on June 17, 2022, with new counsel. After an evidentiary hearing on June 27, 2022, the trial court denied the motion on July 8, 2022. Appellant filed a notice of appeal on August 3, 2022, but this Court dismissed the appeal because one theft-by-taking count remained pending in the trial court. See Case No. S23A0339 (Dec. 20, 2022) (Order dismissing appeal). Later, after the entry of this Court’s dismissal order but before the filing of the remittitur in the trial court, the trial court entered
2 We conclude that the evidence was constitutionally sufficient
to authorize Appellant’s convictions because he and his co-
defendants planned the crimes and he was a party to them; that the
trial court properly exercised its authority in denying Appellant’s
motion for new trial on the general grounds; that the trial court did
not plainly err in concluding that the jail call recordings were
properly authenticated and did not abuse its discretion in
concluding that the recordings were not unduly prejudicial; and that
the trial court did not abuse its discretion in allowing expert
testimony interpreting gang terminology because the testimony
helped the jury understand the specialized language in the
recordings. We also conclude that Appellant has not preserved his
claimed sentencing error for appellate review because he failed to
object and because plain error analysis does not apply to claims like
these; that Appellant’s sentences are not void because they meet the
the nolle pros order on January 3, 2023, as to the pending theft-by-taking count. On April 13, 2023, the trial court filed the remittitur, and Appellant filed an amended notice of appeal on the same day. The case was docketed in this Court to the August 2023 term and submitted for a decision on the briefs. 3 statutory ranges under Georgia law; and that trial counsel was not
constitutionally ineffective because Appellant has not demonstrated
prejudice due to any failure to object. Accordingly, we affirm
Appellant’s convictions. However, we vacate the sentences for
burglary and one count of theft by taking because these counts
should have merged with home invasion and armed robbery,
respectively.
Viewed in the light most favorable to the verdicts, the evidence
at trial showed as follows. We begin by generally summarizing the
evidence in the record, synthesizing pretrial statements by
Appellant’s co-defendants with testimony and other evidence
presented at trial. On April 22, 2018, Appellant spent time with his
friends and co-defendants Gary Pennamon, Kojack Thomas, Jr., and
Martez Gordon. That day, Appellant shared his idea to form a gang
called “Skullface” made up of individuals who “got bodies.” Kojack
knew that the Williamses kept guns and money in their home
because he previously spent time with them; as a result, he
suggested that the group steal from them. The group drove to the
4 road on which the Williamses lived, parked down the road away
from the house, and walked to the house. Around 9:00 or 10:00 p.m.,
Appellant and Gary entered the home while Martez and Kojack
briefly remained outside before entering. Appellant fatally shot
Wendell once using a nine-millimeter firearm. Members of the group
fatally shot Jain a total of three times. The group afterward
searched the house, taking firearms and the Williamses’ 2005
Chevrolet Impala. Alija Pennamon, Gary’s nephew, testified at trial
that he saw a video the group recorded before leaving the house in
which they bragged about the killings. Appellant appeared in the
video. After recording the video, the group left the home with the
Impala.
Early the next morning on April 23, 2018, around 4:00 a.m.,
Gary texted Alija asking for marijuana. Alija responded that he had
some to share, so Gary went with Martez in the Impala to Alija’s
house. Alija got into the car with Gary and Martez, rode with them
to another location to acquire more marijuana, and tried to leave
after Gary said, “[W]e killed two people.” Gary refused to let Alija
5 leave. Eventually, the group also picked up Kojack, and Alija began
driving the Impala. As Alija drove quickly down a dirt road, he lost
control of the car and crashed it into a ditch with Gary, Kojack, and
Martez inside. Gary texted Isaiah Mason asking for a ride. Isaiah
drove to Gary’s location but could not find him.
Meanwhile, Robert Wilkerson, a constable with the Dodge
County Magistrate Court, was responding to a report of suspicious
persons in the same area. Constable Wilkerson turned onto the dirt
road and came upon four young men; two took off running to the
right (one carrying a rifle), and two went to the left. He kept driving
down the road without arresting the four young men and eventually
saw the wrecked Impala. At the same time, Deputy Jonathan
Wright of the Dodge County Sheriff’s Office responded to the same
area to a report of a vehicle in a ditch. He came upon Isaiah, who
said that he was there to pick up his brother.2
On April 25, 2018, concerned neighbors who had not seen the
2 Isaiah testified that he refers to Gary as his “brother” even though they
are not biological brothers. 6 Williamses in a few days called 911 to request a welfare check.
Deputy Dustin Rogers of the Bleckley County Sheriff’s Office
responded to the Williamses’ home, where he discovered their
bodies. A concerned neighbor who met Deputy Rogers at the home
pointed out that the Williamses’ Impala “was gone and that
everything was just awry.”
Following their arrest, Martez and Gary gave recorded
statements to law enforcement regarding the events we summarized
above, which we recount in more detail below. In one recorded
interview, Martez stated that Appellant shared with the group the
day of the murders that he wanted to form a “Skullface” gang where
each member of the gang “got bodies”; that the group said they would
“hit this lick”; that the group shot Jain multiple times; that
Appellant shot Wendell once using a nine-millimeter firearm; and
that the group stole items including firearms and a vehicle from the
Williamses’ home. In another recorded interview, Martez stated that
Kojack proposed the idea to the group that they rob the Williamses
to get their guns; that the group shot Jain multiple times; that
7 Appellant shot Wendell once; that the group stole guns from the
house; and that Appellant and others looked around the Williamses’
home for items to steal. In Gary’s recorded statement, Gary asserted
that the group discussed “hitting a lick”; that Appellant was present
when the murders occurred; that someone shot Jain; and that
Appellant shot Wendell.
Later on, Martez, Gary, and Kojack pled guilty to the murders
and testified at trial; the recordings of Martez’s and Gary’s
interviews with law enforcement officers were also played at trial.
Martez testified that he shot both victims; Gary testified that he
shot Jain and that Kojack shot Wendell; and Kojack testified that he
did not know who shot the Williamses but that Appellant entered
the house with a firearm.
While awaiting trial, Appellant made jail phone calls that were
recorded and played at trial in which Appellant attempted to
influence witnesses. For example, Appellant asked for “the math” of
a co-defendant he wanted to contact in another prison because the
co-defendant had “stacked” on him, and Appellant wanted to “reach
8 out” to that co-defendant. In another call, Appellant asked if the
person he was calling knew individuals at Coffee County
Correctional Facility where Gary was detained or at Phillips State
Prison where Martez was detained and discussed that Gary was
“dead.” Appellant also called his mother, asking her not to identify
him in surveillance videos that the State planned to play at trial
that showed the group together at a gas station near the time of the
murders, and he informed her that he planned to “play a dirty
game.” The State played these recordings at trial following
authentication by an employee of the Dodge County Sheriff’s Office,
whose job duties included monitoring jail calls and who described
how the jail’s recording system operated. The State further called
GBI Agent Eugene Howard to testify as an expert in gang language
and to interpret the recordings, who explained that “the math”
meant the phone number, that “stacked” meant snitched, and that
“reach out” meant to talk to someone.
1. Before we turn to Appellant’s enumerations of error, we
must address three procedural issues in the trial court that
9 implicate our jurisdiction to hear this appeal. See Gonzales v. State,
315 Ga. 661, 662 (884 SE2d 339) (2023) (“It is incumbent upon the
Court to question its jurisdiction in all cases in which jurisdiction
may be in doubt.” (cleaned up)). First, because the trial court entered
an order on the motion for new trial before the judgment became
final upon the trial court’s grant of the State’s pretrial motion for
entry of an order of nolle prosequi on one theft-by-taking count, we
must determine whether the trial court had the authority to do so.
Second, we must consider whether the trial court properly entered
the nolle pros order as to the theft-by-taking count before we issued
the remittitur and the trial court entered it. Third, because
Appellant did not file a second notice of appeal within 30 days of the
entry of the nolle pros order, we must determine whether the notice
of appeal was timely filed, which is a necessary predicate to our
jurisdiction. Notwithstanding this procedural sequencing, we
conclude that Appellant’s appeal is properly before the Court.
(a) This is the second time that Appellant has appealed his
convictions in this case. We dismissed Appellant’s first appeal under
10 Seals v. State, 311 Ga. 739, 748 (860 SE2d 419) (2021), disapproved
of on other grounds by Gonzales, 315 Ga. at 665 n.7, because one
theft-by-taking count of the indictment remained unresolved, and
thus the judgment was not final. See Case No. S23A0339 (Dec. 20,
2022) (Order dismissing appeal). Seals did not specifically address
the question of what authority a trial court possesses to rule on a
motion for new trial as to counts for which a defendant has been
sentenced when other counts remain unresolved. However, we did
state that “[u]nder existing practice, the far better course is to file
and litigate a motion for new trial (during which the transcripts will
be completed), and only then seek a certificate of immediate review
in the event that the motion for new trial is denied.” Seals, 311 Ga.
at 750. This description is consistent with a trial court’s general
authority to rule upon properly filed motions while the case remains
pending in the trial court. Cf. OCGA § 15-6-8 (1) (recognizing the
power of superior courts to exercise original jurisdiction over
criminal cases); OCGA § 15-6-8 (6) (stating that superior courts have
authority “[t]o exercise such other powers, not contrary to the
11 Constitution, as are or may be given to such courts by law”); OCGA
§ 5-6-34 (b) (stating that trial courts may enter an order “not
otherwise subject to direct appeal” and providing for procedure to
appeal from such interlocutory orders). We now make clear that a
trial court has jurisdiction to enter an order on a timely motion for
new trial as to counts for which a defendant has been sentenced even
when other counts remain unresolved. The fact that such an order
is not final for purposes of appellate jurisdiction, see Seals, 311 Ga.
at 748, has no bearing on the trial court’s authority to enter it.
Because there was no bar to the trial court here entering an order
on the properly filed motion for new trial even though another count
remained pending, our appellate jurisdiction is unaffected.3
3 We acknowledge that we have previously dismissed at least two appeals
in a similar procedural posture as Appellant’s case, on the ground that “the order denying the motion for new trial was not legally valid because it was entered while the dead-docketed count remained pending.” Norris v. State, 316 Ga. 119, 119 n.1 (884 SE2d 371) (2023) (describing order dismissing prior appeal). See also Wheeler v. State, 314 Ga. 484, 484 n.1 (877 SE2d 565) (2022) (explaining procedural history that included order dismissing prior appeal; vacating trial court order denying motion for new trial that had been entered before judgment became final upon entry of nolle pros order; and remanding for trial court to enter an order on the pending motion for new trial). We disapprove of Norris and Wheeler to the extent that they suggest that an order
12 (b) Second, we must address whether the trial court had
authority to enter a nolle pros order before the return of the
remittitur. In its codified preamble, the Appellate Practice Act
(“APA”) directs us to “liberally construe[ ]” it “so as to bring about a
decision on the merits of every case appealed and to avoid dismissal
of any case or refusal to consider any points raised therein, except
as may be specifically referred to in this article.” OCGA § 5-6-30. We
therefore generally begin in each case otherwise properly within our
jurisdiction with the premise that, absent legal authority or
principles that prevent us from reaching the merits, we should reach
the merits the parties raise. See id. And here, where the trial court
issued a nolle pros order while an earlier appeal was pending, the
only statutory directive that would prevent us from reaching the
merits is OCGA § 5-6-45 (a).4 That subsection provides that in
denying a motion for new trial is invalid when it is entered while dead-docketed counts remain pending. 4 As we explain later in this subdivision, when a supersedeas takes effect
is also controlled by decisions from this Court explaining that notices of appeal usually act as supersedeas. See, e.g., Sanders v. State, 313 Ga. 191, 192 (869 SE2d 411) (2022) (“A notice of appeal generally divests the trial court of jurisdiction to alter the judgment or order that is being appealed.”). 13 criminal cases, supersedeas applies only to “cases where a sentence
of death has been imposed or where the defendant is admitted to
bail”; otherwise, it is silent as to which actions by a trial court are
precluded during the pendency of a criminal appeal. See OCGA § 5-
6-45 (a). OCGA § 5-6-45 (a) is inapplicable here because Appellant
did not receive a death sentence and is not out on bail. See Sanders
v. State, 313 Ga. 191, 193 (869 SE2d 411) (2022) (explaining that
OCGA § 5-6-45 (a) “means that the trial court cannot authorize the
execution of a convicted defendant or, if the defendant is out on bail,
require her to start serving her sentence while her appeal is
pending”). Thus, reading OCGA §§ 5-6-30 and 5-6-45 (a) together,
see In the Interest of T. B., 313 Ga. 846, 852 (874 SE2d 101) (2022)
(explaining that “codified preambles are part of the statutory act and
appropriate to read in pari materia” (cleaned up)), we follow the
APA’s admonition to reach the merits of Appellant’s case.
Moreover, we possess inherent power to protect our own
jurisdiction. See Ga. Const. of 1983, Art. VI, Sec. I, Par. I (providing
that “[t]he judicial power of the state shall be vested” in this Court,
14 among others); OCGA § 15-1-1 (stating that “[t]he judicial power is
vested in such tribunals as are created by the Constitution of this
state”). See also Garcia v. Miller, 261 Ga. 531, 532 (408 SE2d 97)
(1991) (“This court has the inherent power essential to protect the
judiciary as an independent branch of state government and to
maintain a court system capable of providing for the administration
of justice in an orderly and efficient manner.”); Wallace v. Wallace,
225 Ga. 102, 111 (166 SE2d 718) (1969) (“That the courts possess
certain inherent powers is a proposition which, so far as we know,
has never been questioned. This means, then, when the [Georgia]
Constitution declares that the legislative, judicial and executive
powers shall forever remain separate and distinct . . . it thereby
invests those officials charged with the duty of administering justice
according to law with all necessary authority to efficiently and
completely discharge those duties the performance of which is by the
Constitution committed to the judiciary, and to maintain the dignity
and independence of the courts.” (cleaned up)). When action by a
trial court could prevent us from hearing an appeal that we
15 otherwise have constitutional and statutory authority to decide, we
may exercise our inherent power to protect our jurisdiction over that
case. Cf. In re Judicial Qualifications Comm’n Formal Advisory Op.
No. 239, 300 Ga. 291, 293 (794 SE2d 631) (2016) (“Jurisdiction refers
to the types of cases the court can hear and decide. Power includes
the authority to perform any function reasonably necessary to
effectuate its jurisdiction[.]” (cleaned up)).
Consistent with the APA’s admonition to decide appeals on the
merits and keeping in mind our inherent power to protect our
jurisdiction, we conclude that the trial court was authorized to nolle
pros the theft-by-taking count before the return of the remittitur.
This approach comports with “the general principle that the trial
court is divested of jurisdiction to alter the judgment or order
appealed from,” Sanders, 313 Ga. at 194, because the nolle pros
order here did not affect the counts of which Appellant was convicted
and which were challenged on appeal.5 Accordingly, we hold that we
5 Consistent with this principle, the trial court has authority “to amend
its own records, so as to make them conform to the truth” and “[t]o correct its
16 have jurisdiction over Appellant’s case notwithstanding the entry of
the nolle pros order before the return of the remittitur. Cf. Felix v.
State, 271 Ga. 534, 534-535 (523 SE2d 1) (1999) (noting that the APA
“was passed to simplify the procedure for bringing a case to the
appellate court, and to secure speedy and uniform justice in a
uniform and well-ordered manner; not to set traps and pitfalls by
way of technicalities for unwary litigants” (cleaned up)). In doing so,
we clarify that our decision today addresses only how the APA and
its supersedeas provisions affect cases over which we otherwise
already have jurisdiction.
(c) Finally, Appellant’s first notice of appeal ripened upon the
entry of the nolle pros order that made the judgment final, so it is
not legally relevant that he did not file a second notice of appeal
within 30 days after its entry. See State v. Hood, 295 Ga. 664, 664-
own proceedings before final judgment.” OCGA § 15-1-3 (6)-(7). We also note that our approach is consistent with how federal courts handle this issue. See, e.g., SEC v. Barton, 79 F4th 573, 579 (5th Cir. 2023) (recounting “that the filing of a valid notice of appeal from a final order of the district court divests that court of jurisdiction to act on the matters involved in the appeal, except to aid the appeal” and other exceptions (cleaned up)). 17 665 (763 SE2d 487) (2014) (stating that a notice of appeal filed after
final judgment, but before an order disposing of a motion for new
trial, will ripen upon a trial court’s denial of the motion for new
trial). See also Spears v. State, 367 Ga. App. 92, 94-97 (883 SE2d
866) (2023) (holding that a notice of appeal, which was timely filed
after the denial of the motion for new trial, ripened after the trial
court issued a nolle pros order, even though the appellate court had
dismissed the original appeal because of the existence of pending
counts). Accordingly, we have jurisdiction to consider the
enumerations of error raised.
2. (a) Appellant first claims that the evidence was
constitutionally insufficient under Jackson v. Virginia, 443 U.S. 307
(99 SCt 2781, 61 LE2d 560) (1979), but he is wrong. “On appeal, a
criminal defendant is no longer presumed innocent, and we review
whether the evidence presented at trial, when viewed in the light
most favorable to the jury’s verdicts, enabled the jury to find the
defendant guilty beyond a reasonable doubt of the crimes of which
[the defendant] was convicted.” Fitts v. State, 312 Ga. 134, 141 (859
18 SE2d 79) (2021). “This limited review leaves to the jury the
resolution of conflicts in the evidence, the weight of the evidence, the
credibility of witnesses, and reasonable inferences to be made from
basic facts to ultimate facts.” Wilkerson v. State, 317 Ga. 242, 245
(892 SE2d 737) (2023) (cleaned up).
Here, the evidence presented at trial and recited in part above
was plainly sufficient to authorize the jury to find Appellant guilty
of each offense for which he was convicted. Although the evidence
was conflicting, Martez’s and Gary’s pretrial statements to law
enforcement and Kojack’s testimony at trial inculpated Appellant,
and the jury was free to discredit contrary evidence. See id. It is
legally inconsequential whether Appellant fired all the fatal shots or
stole all the items from the home because the jury was authorized to
infer that he shared the criminal intent to perpetrate those crimes,
and Appellant was part of the group that entered the Williamses’
home armed with firearms to “hit a lick” while the Williamses were
inside. See OCGA § 16-2-20 (defining party to a crime). See also
Rooks v. State, 317 Ga. 743, 751 (893 SE2d 899) (2023) (“Conviction
19 as a party to a crime requires proof of a common criminal intent,
which the jury may infer from the defendant’s presence,
companionship, and conduct with another perpetrator before,
during, and after the crimes.” (cleaned up)). The evidence recited
above was constitutionally sufficient to authorize a rational jury to
find Appellant guilty of malice murder, felony murder, home
invasion, armed robbery, aggravated assault, burglary in the first
degree, possession of a firearm during the commission of a felony,
and theft by taking. See, e.g., Jordan v. State, 307 Ga. 450, 452-453
(836 SE2d 86) (2019) (holding that the evidence was sufficient to
support malice murder and other convictions where the defendant
agreed to participate in a home invasion as part of a gang, held the
victim at gunpoint, “was observed laughing [with another member
of the group] about the shooting,” and spoke in jail about a person
the defendant killed, and where the group took the victim’s property
from the house); Overstreet v. State, 312 Ga. 565, 571-572 (864 SE2d
14) (2021) (holding that the evidence was sufficient to authorize
malice murder conviction where evidence indicated that the
20 defendant agreed with others to rob the victim, went to the victim’s
home carrying firearms, and shot the victim after demanding
money, and that members of the group held the victim at gunpoint
and searched the house for items to steal).
(b) Appellant also contends that the verdict was contrary to the
principles of justice and equity and against the weight and
sufficiency of the evidence. To the extent that Appellant seeks relief
from this Court under the “general grounds” in OCGA §§ 5-5-20 and
5-5-21, this claim presents nothing for our review, see Kimbro v.
State, 317 Ga. 442, 446 (893 SE2d 678) (2023), because “the decision
to grant a new trial on the general grounds is vested solely in the
trial court.” King v. State, 316 Ga. 611, 616 (889 SE2d 851) (2023)
(cleaned up). In its order denying Appellant’s motion for new trial,
the trial court stated that it reviewed the evidence and record and
found that the verdict was “not contrary to the evidence or decidedly
and strongly against the weight of the evidence” and that “the
principles of justice and equity [did] not demand a new trial.”
Accordingly, Appellant’s general grounds claim fails. See Allen v.
21 State, 315 Ga. 524, 531 (883 SE2d 746) (2023) (“Once we have
determined that the trial court properly exercised its authority in
refusing to grant a new trial on the general grounds, we cannot
review the merits of that decision by the trial court.” (cleaned up)).6
3. Appellant next maintains that the trial court abused its
discretion by admitting recordings of Appellant’s jail phone calls
because the recordings lacked proper authentication and were
unduly prejudicial. However, Appellant did not assert an objection
based on lack of authentication below, and therefore his
authentication argument is reviewable only for plain error. See
OCGA § 24-1-103 (d). See also Davis v. State, 302 Ga. 576, 578-582
(805 SE2d 859) (2017) (applying plain error review where the
defendant raised a different argument on appeal than the basis for
his objection at trial). Plain error has four prongs:
First, there must be an error or defect — some sort of
6 Although many of us continue to “question whether it is proper for this
Court to import Jackson into an appellate review of the general grounds (or to otherwise rely on Jackson as part of that analysis),” we need not resolve that issue today because Appellant also argues that the evidence was constitutionally insufficient. King, 316 Ga. at 616 n.8. See also Muse v. State, 316 Ga. 639, 653 n.6 (889 SE2d 885) (2023). 22 deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Washington v. State, 312 Ga. 495, 498 (863 SE2d 109) (2021)
(cleaned up).
An audio-recording that is created
at a time when the device producing the items was not being operated by an individual person or was not under the personal control or in the presence of an individual operator shall be admissible in evidence when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered[.]
OCGA § 24-9-923 (c). Here, the employee of the Dodge County
Sheriff’s office testified that her job duties included listening to jail
calls; that an automated system recorded all jail calls and stored
them on a server for four years; that the inmates entered a personal
23 identification number before calling; that Appellant used his own
identification number when placing calls; that the system also
tracked the phone numbers the inmates dialed; that the system
accurately recorded the calls at issue when made; and that no one
altered the recordings. In light of this testimony, the trial court was
authorized to determine by a preponderance of the evidence that the
recordings tended to reliably show that they were the contents of the
calls that Appellant placed, and thus did not err, much less plainly
err, in admitting them. See Westbrook v. State, 308 Ga. 92, 100-101
(839 SE2d 620) (2020) (rejecting, under plain error review,
argument that audio recording of jail call was not properly
authenticated where the State presented similar testimony as to the
recording process); OCGA § 24-1-104 (a) (“Preliminary questions
shall be resolved by a preponderance of the evidence standard.”). See
also Reid v. State, 306 Ga. 769, 778-779 (833 SE2d 100) (2019).
Additionally, the trial court did not abuse its discretion by
overruling Appellant’s objection under OCGA § 24-4-403 (“Rule
403”), which, in part, authorizes a trial court to exclude “relevant
24 evidence . . . if its probative value is substantially outweighed by the
danger of unfair prejudice[.]” When
reviewing the admission of evidence under Rule 403, we look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact. And it is well settled that the application of Rule 403 is a matter committed principally to the discretion of the trial courts, and the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly.
Salvesen v. State, 317 Ga. 314, 317 (893 SE2d 66) (2023) (cleaned
up). The recordings were highly probative because they illustrated
consciousness of guilt. See West v. State, 305 Ga. 467, 471-475 (826
SE2d 64) (2019) (holding that audio-recordings of jail calls
attempting to influence a juror were relevant, did not constitute
improper character evidence, and were not unduly prejudicial as
they tended to show the defendant’s consciousness of guilt). And
Appellant has not explained on appeal any danger of unfair
prejudice that the recordings caused, nor do we see any. Cf.
Robinson v. State, 308 Ga. 543, 551 (842 SE2d 54) (2020) (“Robinson
points only to Rule 403 to support his claim, but other than noting
25 the gruesome nature of the video, he fails to explain how this portion
of the video was unfairly prejudicial to him.”). Thus, the trial court
did not abuse its discretion.
4. Appellant next asserts that the trial court abused its
discretion under Rule 403 by allowing GBI Agent Eugene Howard
to testify as an expert in gang language. A defendant need not “be
charged with criminal street gang activity before otherwise relevant
evidence of gang activity may be admitted.” Richardson v. State, 308
Ga. 70, 72 (838 SE2d 759) (2020) (cleaned up). “Like other evidence,
the admission of evidence of gang activity is committed to the sound
discretion of the trial court, and the court’s decision to admit such
evidence will not be disturbed on appeal absent an abuse of
discretion.” Taylor v. State, 304 Ga. 41, 46 (816 SE2d 17) (2018).
Agent Howard explained the meanings of various words and phrases
in Appellant’s jail phone call recordings, such as “the math,”
“flipped,” and “reach out to,” which helped the State show that
Appellant was unhappy with the prospective witnesses and wanted
to talk to them before trial. Agent Howard’s testimony was highly
26 probative because it helped the jury understand the unfamiliar
terminology in the calls, and, properly understood, Appellant’s
statements using that vernacular showed that he wanted to speak
with others because they were cooperating with the State in a
manner that was unfavorable to him. See Richardson, 308 Ga. at 72
(“The letter was largely incomprehensible to someone unfamiliar
with the vernacular of Richardson’s gang, and the expert testimony
was relevant (and had significant probative value) because it
showed that the letter instructed [a person who knew about the
crimes] to keep quiet about [the victim’s] murder. And it was
important to show that the letter was designed to keep [that person]
quiet because Richardson’s attempt to conceal his involvement in
the crimes was evidence of his guilt.” (cleaned up)). Lastly, the
expert testimony was not unfairly prejudicial because the jury heard
evidence that Appellant planned to form a gang, and that was the
motivation for the crimes, so the testimony that Appellant was using
gang language was unlikely to “inflame the passion of the jury for a
reason that is irrelevant to the guilt or innocence of the defendant.”
27 Wilson v. State, 315 Ga. 728, 739 (883 SE2d 802) (2023). See also
Richardson, 308 Ga. at 72 Accordingly, the trial court did not abuse
its discretion.
5. (a) Appellant further argues that the trial court’s comments
at sentencing show that it plainly erred by sentencing him based on
“the concepts that are present in [Appellant’s] world where life has
little to no meaning” rather than under Georgia law. 7 At the
sentencing hearing, the trial court stated:
I thought that I would have a dilemma in sentencing you. I must balance what is a fair and appropriate sentence as it relates to you in your situation against the needs of the people of this state, this circuit, this county, and the city of Chester as justice requires. Though initially I thought my task would be difficult, I have resolved that it is not. The dilemma that I thought I would have was do I sentence Demarcus Deshawn Blash according to my worldly concepts of compassion and caring for life? But then it occurred to me how could anyone complain if I sentenced Mr. Blash [according] to the concepts that are present in his world where life has little to no meaning as reflected by the manner in which the Williamses’s [sic] were murdered and your admission of guilt trying to influence witnesses by intimidation and that intimidation
7 Appellant does not argue that the trial court’s comments demonstrate
bias or impartiality. Compare Jackson v. State, 315 Ga. 543, 552-555 (883 SE2d 815) (2023). 28 including the fear of death.
Appellant did not object, which deprives him of the ability to seek
ordinary appellate review. And the trial court’s remarks are not
subject to plain error review, because they do not fall within one of
the limited categories of alleged errors that the General Assembly
has said can be reviewed for plain error. See Keller v. State, 308 Ga.
492, 497 (842 SE2d 22) (2020) (“This Court has declined to extend
plain error analysis to other claims of error in the absence of a
specific provision by the General Assembly.”) Because none of the
statutory bases of plain error review are present, we do not review
Appellant’s error as articulated.
(b) Nevertheless, Appellant cannot waive a voidness objection
by failing to object at trial, so this Court will address Appellant’s
arguments to the extent that he challenges the voidness of his
sentences. See Marshall v. State, 309 Ga. 698, 702-703 (848 SE2d
389) (2020). Appellant’s sentences are not void because they fall
within the statutory punishment ranges. See id; OCGA §§ 16-5-1 (e)
(1) (outlining murder sentencing possibilities as death or life in
29 prison with or without parole); 16-7-1 (b) (providing that sentence
range for burglary in the first degree is a prison term of between one
and twenty years); 16-7-5 (d) (sentencing options for home invasion
are “imprisonment for life or imprisonment for not less than ten nor
more than 20 years and by a fine of not more than $100,000.00”);
16-8-12 (a) (1) (C) (stating that the punishment for theft by taking
of property “at least $1,500.01 in value but . . . less than $5,000.00
in value” is “imprisonment for not less than one nor more than five
years and, in the discretion of the trial judge, as for a
misdemeanor”); 16-8-12 (a) (6) (B) (“If the property which was the
subject of the theft offense was a . . . firearm, by imprisonment for
not less than one year nor more than ten years[.]”); 16-8-41 (b)
(declaring that sentencing choices for armed robbery are death, life
in prison, or between ten and twenty years in prison); 16-11-106 (b)
(setting punishment for possession of a firearm during the
commission of a felony at “confinement for a period of five years,
such sentence to run consecutively to any other sentence which the
person has received”).
30 6. Appellant contends that he was denied effective assistance
of counsel due to his trial counsel’s failure to object when the trial
court allegedly did not sentence Appellant under Georgia law. To
show that his trial counsel was ineffective, Appellant must
demonstrate deficiency and prejudice. See Evans v. State, 315 Ga.
607, 611 (884 SE2d 334) (2023) (citing Strickland v. Washington,
466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984)). Deficiency
means trial counsel performed objectively unreasonably under all
the circumstances and in light of prevailing professional norms. See
Strickland, 466 U.S. at 687-688. We “must indulge a strong
presumption” that trial counsel performed reasonably. Id. at 689.
And to show prejudice, Appellant must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. We need not
address both prongs if Appellant fails to show either of them. See id.
at 697.
“A trial court, in imposing a sentence, may consider any
evidence that was properly admitted during the guilt-innocence
31 phase of the trial, as well as the conduct and attitude of the
defendant during trial.” Wilson, 315 Ga. at 741 (cleaned up). But “[a]
trial court should not . . . take into account when sentencing any
considerations that are not clearly shown by the evidence of record.”
Blake v. State, 273 Ga. 447, 450 (542 SE2d 492) (2001). Appellant
has failed to show any prejudice from the trial court’s statement that
it was sentencing him according to “the concepts that are present in
his world where life has little to no meaning.” The statement
Appellant points to is somewhat confusing, and the thrust of the
trial court’s consideration seems to be the “manner in which the
Williamses were murdered” and the way Appellant tried to
intimidate the witnesses. That information was in evidence and was
proper for the trial court to consider. See Wilson, 315 Ga. at 740-
741. Appellant was sentenced within the proper statutory ranges,
and he has not shown that this stray comment from the trial court
resulted in his sentences being higher than they would have been
otherwise. Thus, he has not shown that he was prejudiced by
counsel’s failure to object to this comment, and his ineffectiveness
32 claim fails. See Strickland, 466 U.S. at 697 (explaining that “there
is no reason for a court deciding an ineffective assistance claim . . .
to address both components of the inquiry if the defendant makes
an insufficient showing on one”).
7. We have identified two merger errors that harm Appellant
and should be corrected. See Dixon v. State, 302 Ga. 691, 696-698
(808 SE2d 696) (2017) (recounting this Court’s authority to sua
sponte correct merger errors and explaining that we most commonly
exercise that authority with respect to merger errors that harm a
defendant). Counts 5 and 10 of the indictment charged Appellant
with first degree home invasion and first degree burglary,
respectively. First degree burglary does not require proof of any fact
beyond those required to prove first degree home invasion. Compare
OCGA § 16-7-1 (b) with OCGA § 16-7-5 (d). Therefore, Appellant’s
conviction for first degree burglary merged into the conviction for
home invasion. See Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d
530) (2006) (“Under the required evidence test, . . . the applicable
rule is that where the same act or transaction constitutes a violation
33 of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not.”
(cleaned up)); Washington, 312 Ga. at 495 n.1 (noting that “the first
degree burglary count merged with the first degree home invasion
conviction”). Therefore, we vacate the sentence for first degree
burglary.
Additionally, Counts 6 and 7 charged Appellant with armed
robbery for taking Jain’s and Wendell’s firearms by force, and Count
12 charged Appellant with the theft by taking of “a firearm, the
property of Jain and Wendell Williams.” The theft by taking of the
firearm should have merged, see Wallace v. State, 299 Ga. 672, 674
(791 SE2d 836) (2016), and therefore no sentence can be imposed on
it. We accordingly also vacate Appellant’s sentence as to theft by
taking of the firearm.
Judgment affirmed. All the Justices concur.