306 Ga. 403
FINAL COPY
S19A0508. EVANS v. THE STATE.
ELLINGTON, Justice.
A Tift County jury found Ruby Evans (“Appellant”) guilty of
conspiring with her son to murder her daughter-in-law, Sunday
Blombergh, with an overdose of drugs and of committing malice
murder as a party to her husband’s subsequent acts of shooting,
strangling, and stabbing Blombergh to death.1 She appeals,
contending that the evidence was insufficient to support her
1 The murder occurred on April 22, 2010. On July 8, 2010, a Tift County
grand jury indicted Appellant for malice murder, felony murder predicated on
aggravated assault, aggravated assault, and conspiracy to commit murder
(which conspiracy was alleged to have occurred on or about March 26, 2010).
Appellant was not indicted with her co-conspirators, Theo Conoly and Herman
Evans. Following a trial held on September 25-27, 2012, the jury found
Appellant guilty on all counts. She was sentenced to serve life without parole
for malice murder and to serve a consecutive ten-year term of imprisonment
for conspiracy to commit murder. The trial court purported to merge the felony
murder and aggravated assault convictions into the malice murder count. We
note, however, that the felony murder count was vacated by operation of law.
See Malcolm v. State, 263 Ga. 369, 371-372 (4) (
434 SE2d 479) (1993).
Appellant filed a timely motion for a new trial on October 2, 2012, which she
later amended on October 4, 2017. Following a hearing, the trial court denied
the motion on September 25, 2018. Appellant filed a timely notice of appeal,
and her case was docketed in this Court for the April 2019 term and submitted
for decision on the briefs.
convictions and that she was denied the effective assistance of trial
counsel. Finding no error, we affirm.
1. Appellant contends that the evidence was insufficient to
prove that she participated in Blombergh’s murder. She argues that
it showed that her husband, Herman Evans, was alone with
Blombergh when he killed her, and that he was provoked to violence
by Blombergh while arguing with her about her drug abuse. Evans
pleaded guilty to murder and received a life sentence. Although
Appellant admitted that she had wished Blombergh dead, she
contends that her mere approval of Evans’ crime was insufficient to
hold her criminally liable.2 For the following reasons, we disagree.
“Every person concerned in the commission of a crime is a party
thereto and may be charged with and convicted of commission of the
crime.” OCGA § 16-2-20 (a). As is relevant to this case, Appellant is
2 Appellant does not specifically dispute the legal sufficiency of the
evidence supporting her conviction for conspiracy to commit murder, which
was based on acts committed by her and her son about a month prior to the
murder. Nevertheless, as is this Court’s practice in murder cases, we will also
review the record and make a determination as to the legal sufficiency of the
evidence supporting her conviction for conspiracy to commit murder.
2
concerned in the commission of a crime if she “(3) [i]ntentionally aids
or abets in the commission of the crime; or (4) [i]ntentionally advises,
encourages, hires, counsels, or procures another to commit the
crime.” OCGA § 16-2-20 (b) (3), (4). Although mere presence at the
scene of the crime or mere approval of a criminal act is insufficient
to establish that a defendant was a party to the crime, a jury may
infer from such evidence — as well as evidence of companionship
and conduct before, during, and after the crime — that the
defendant shared a common criminal intent with the one who
performed the criminal act. See Slaton v. State, 296 Ga. 122, 124 (1)
(
765 SE2d 332) (2014) (A jury could reasonably infer from the
evidence concerning defendant’s conduct in calling his fellow gang
members to retrieve him from an apartment where someone was
threatening him, as well as his celebrating with them that evening
after the shooting that enabled him to leave, that he was a party to
the crime under OCGA § 16-2-20 (b) (4) by advising, encouraging,
counseling, or procuring others to commit the shooting.).
When evaluating a challenge to the sufficiency of the evidence,
3
we view the evidence admitted at trial in the light most favorable to
the verdict and ask whether any rational trier of fact could have
found the defendant guilty beyond a reasonable doubt. McGruder v.
State, 303 Ga. 588, 590 (II) (
814 SE2d 293) (2018) (“Our 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.”
(citations and punctuation omitted)). So viewed, the evidence at trial
showed that Theo Conoly (Appellant’s son from a previous marriage)
and Blombergh had a child together, I. C., who was born in February
2003. Toward the end of 2009, Conoly and Blombergh separated.
Conoly moved to Tallahassee, Florida, and Blombergh and I. C.
moved in with the Evanses in their Tift County home. Appellant
disapproved of Blombergh’s substance abuse and frequently
complained that she was an unfit mother. She called Blombergh
“lazy, selfish, conceited, and a horrible mom,” and opined that her
granddaughter would be better off without Blombergh. She wished
that Blombergh would overdose and die. On a number of occasions,
4
Appellant “told,” “ordered,” or “screamed at” Evans to kill
Blombergh. She said that if he loved her and I. C. and was “any kind
of man,” he would kill Blombergh to get her out of I. C.’s life.
In late March 2010, Conoly returned home from Tallahassee to
visit his family. Conoly testified that, during a visit with Appellant
at her Tifton flower shop, she asked him how much money it would
take to buy a fatal drug overdose for Blombergh. Conoly told her it
would take about $60. Appellant gave him the money and drove him
to Blombergh’s dealer. Conoly bought cocaine with the money, but
instead of killing Blombergh with it, he and Blombergh used it
together. Conoly testified, and Appellant admitted, that Appellant
was “pissed” and disappointed with him for failing to execute their
plan. Conoly later pleaded guilty to conspiracy to commit murder
based on these events and was sentenced to serve three years in
prison.
On March 27, Appellant called the police to report that her
Jennings .22 caliber pistol had been stolen from the back room of her
flower shop. Then, in the weeks leading up to the April 22 murder,
5
Appellant told her husband several times that she was tired of
Blombergh’s behavior and pressed him to “go ahead and get rid” of
her and to get her out of their lives. Evans testified that, around
noon on April 22, he entered his home and found Blombergh sitting
on the living room couch, injecting herself with cocaine. According
to Evans, he argued with the victim. He testified that the argument
escalated and that he shot her in the back of the head with a .22
caliber pistol that he said he carried with him for work. After
shooting Blombergh, he dragged her into her bedroom, believing
that she was dead. He testified that he then drove to Appellant’s
flower shop to give Appellant Blombergh’s cell phone. He asked
Appellant whether she still wanted Blombergh dead and “if she
could handle it” if he killed her. When Appellant said yes, Evans told
her that the victim was already dead. He left the shop and returned
home. When he entered Blombergh=s bedroom, he found her sitting
up against the bed, crying out for help. Evans testified that he
wrapped an extension cord around her neck and attempted to
strangle her. When that did not work, he went out to his truck to
6
retrieve his folding knife, and then returned and stabbed Blombergh
in the heart with it.
Randy Tomlinson, a friend of Evans’, testified that, on April 22,
Evans asked him to buy some peroxide and bring it to him.
Tomlinson took the peroxide to Evans’ home and, upon entering the
house, smelled a bad odor. Evans told him to take a look in the back
bedroom. Tomlinson saw Blombergh’s body lying on the floor next to
the bed. Tomlinson asked Evans what he had done, and Evans said
that Blombergh “had to die.” Tomlinson helped Evans clean up the
blood and dispose of the body in a wooded area. Tomlinson testified
that, on many previous occasions, Evans had complained that
Blombergh was an unfit mother and was only interested in doing
drugs and partying. Tomlinson also heard Appellant say that she
wanted to raise I. C. herself because Blombergh was an unfit
mother.
According to Evans, when Appellant left work on the night of
April 22, she went to a friend’s house with I. C. to eat pizza. When
she returned home, Evans asked her to check and make sure that
7
he had not missed anything when cleaning the house. Appellant
cleaned up a blood spot on the couch and burned one of the throw
pillows in the fireplace because it had blood on it. Evans and
Appellant went through a box of ammunition and got rid of all of the
.22 caliber short bullets they thought matched those he had used to
shoot Blombergh. Appellant put the bullets in a potato chip bag and
later threw them out on the side of the highway. Evans testified that
he disposed of the gun that he used to shoot Blombergh by tossing it
out of his truck and into a highway construction zone. He threw the
knife away elsewhere. Evans later burned the couch that Blombergh
had been sitting on when she was killed. Appellant also burned the
blanket that Evans and Tomlinson had wrapped around
Blombergh’s body.
On April 24, Appellant reported Blombergh missing, telling the
police that no one had heard from her since April 22. Appellant said
that Blombergh was a cocaine addict and not fit to have custody of
I. C. She also told the police that she had overheard Blombergh
talking on the phone to her sister about going to Tallahassee.
8
Around April 24, Appellant called Conoly and told him that
Blombergh had not been home in a few days, and she asked Conoly
if Blombergh was with him in Tallahassee. A few days later,
Appellant asked Conoly to sign a form giving her control over I. C.’s
medical and educational decisions.
On April 26, Appellant agreed to meet with investigators
looking into Blombergh’s disappearance and to describe her last
encounter with Blombergh. Appellant said that, on April 22,
Blombergh had called her and asked her to buy some cigarettes.
Appellant allowed the investigators to search her residence. They
found Blombergh’s cell phone charger in her bedroom, but they did
not find her cell phone or purse. They also found a burn pile in the
back yard. Pursuant to search warrants issued in May, investigators
discovered remnants of the couch’s frame in the burn pile, what
appeared to be blood on the living room ceiling, and the victim’s
blood in the carpet in her bedroom.
In mid-May, Conoly returned to Tifton to visit his parents.
While eating lunch with Conoly, Appellant told him that Evans had
9
“done it,” that he had killed Blombergh. Conoly urged Appellant to
call the police. She told Conoly that she could not turn Evans in
because he had murdered Blombergh for her. Appellant told Conoly
to take a few sentimental pieces of jewelry and her Jennings .22
caliber pistol from the flower shop. Conoly recovered the jewelry and
the gun from where Appellant had hidden them, in an
air-conditioning vent in the shop. Knowing that Conoly would report
the murder, Appellant told Evans that “the jig was up.” Evans tried
to talk Conoly out of reporting the crime. When Conoly returned to
Tallahassee, he called the Sheriff=s Office in Tifton to report what
Appellant had told him. Conoly later traded Appellant’s pistol to one
of his friends for drugs.
Not long after the murder, Appellant left Evans and moved in
with Robert Price, who had at some point become her boyfriend.
Price testified that investigators came to his house to question
Appellant about Blombergh’s disappearance. After they left,
Appellant confessed to him that Evans had murdered Blombergh.
She told him that Evans had called her at the flower shop on the day
10
of the killing and told her to come home because it was an
emergency. When she got home, she found Blombergh sitting on the
couch, injured and asking for help. According to Price, Appellant told
Blombergh that there “wasn’t anything that she could do for her.”
Evans gave Appellant some bullets to throw away, then he dragged
Blombergh to the bedroom and stabbed her. Price also testified that,
on a later occasion, he was at the flower shop with Appellant while
Appellant was arguing with Evans on a speaker phone. Evans told
Appellant that if he “went down” for the murder, she would go down
with him because she had been present during the killing.
On May 26, investigators recovered Appellant’s Jennings .22
caliber pistol in Tallahassee. When Appellant was questioned
further, she confessed to having knowledge of Blombergh’s murder.
She admitted wishing that Blombergh was dead so that I. C. could
be raised properly. She also admitted that Evans had come to her
flower shop to tell her that he had killed Blombergh. She said that,
although Evans had asked her to check to make sure that he had
cleaned up well after the killing, she did not see anything amiss and
11
did not believe that her husband had really killed Blombergh until
the next day, when she found a pillow with blood on it.
On May 27, Tomlinson confessed to his involvement in the
crime. He took investigators to the place he and Evans had disposed
of Blombergh’s body. After a month in the woods, the victim’s body
had lost most of its soft tissue to decomposition and scavenging
animals. The remains were delivered to the medical examiner in
several paper bags. The medical examiner testified that the back of
the skull had an entrance gunshot wound and that the skull
contained a deformed .22 caliber bullet. The ninth rib on the left side
of the torso had been fractured by blunt force. The medical examiner
opined that the cause of death was a gunshot wound to the head.
Given the decomposition of the body, the medical examiner was
unable to determine whether the victim had also been strangled or
stabbed. A ballistics expert testified that the .22 caliber bullet
recovered from Blombergh’s skull was too deformed to test for a
match with a specific weapon; however, it could have been fired from
Appellant’s .22 caliber Jennings pistol.
12
Given this evidence, the jurors could infer that Appellant was
motivated to kill Blombergh because she wanted custody of I. C.
They could infer the requisite malicious intent for both conspiracy
to commit murder and murder from Appellant’s numerous
statements encouraging, demanding, and soliciting Conoly and
Evans to kill Blombergh. Contrary to Appellant’s argument, there
was sufficient evidence corroborating Evans’ and Conoly’s
testimony.3
With respect to the crime of conspiracy, the jury could find that
Appellant was guilty of conspiracy to commit murder in that she had
devised a plan to kill Blombergh, had solicited and encouraged
Conoly to carry out the murder, and had furthered the objective of
the conspiracy by paying for and taking him to purchase the planned
means of Blombergh’s death, an overdose of cocaine.4 With respect
3 See Ramirez v. State, 294 Ga. 440, 442 (
754 SE2d 325) (2014) (“[w]here,
as here, more than one accomplice testifies at trial, the testimony of one
accomplice may be corroborated by the testimony of the others” (citation and
punctuation omitted)).
4 OCGA § 16-4-8 provides that “[a] person commits the offense of
conspiracy to commit a crime when he together with one or more persons
conspires to commit any crime and any one or more of such persons does any
overt act to effect the object of the conspiracy . . .”
13
to the crime of murder, the jury could infer that Appellant aided
Evans in killing Blombergh by making a false report that her .22
caliber pistol, the possible murder weapon, had been stolen weeks
before the murder. Appellant also told her boyfriend that she had
been present when the murder occurred. And the record is replete
with evidence of Appellant’s efforts to conceal the murder, from
which the jury could infer both her participation in the crime and
her guilty conscience. Given this evidence, the jury was authorized
to find Appellant guilty as a party to the crime of murder.5
2. Appellant contends that her trial counsel’s performance was
deficient in three respects: (a) he failed to move the trial court for a
5 “A person commits the offense of murder when he unlawfully and with
malice aforethought, either express or implied, causes the death of another
human being.” OCGA § 16-5-1 (a). See, e.g., Eller v. State, 303 Ga. 373, 378-
379 (II) (
811 SE2d 299) (2018) (In the trial of two defendants, brother and
sister, for the murder of the sister’s boyfriend during an argument, the
evidence was sufficient to support the sister’s convictions of felony murder and
aggravated assault because the brother had committed aggravated assault and
murdered the victim, and both defendants worked together to conceal the
death, dispose of his body, get rid of the murder weapon, destroy evidence, and
lie. Further, the evidence of the sister’s presence at the murder, her
companionship with her brother, and her conduct before, during, and after the
offense were sufficient to authorize a rational trier of fact to disbelieve her
version of events and find that she aided and abetted her brother’s crimes.)
14
change of venue; (b) he failed to object to the admission of
photographs of the victim’s remains; and (c) he failed to object to the
admission of irrelevant “blood spatter” evidence. To prevail on a
claim of ineffective assistance of counsel, Appellant must prove both
deficient performance and resulting prejudice. See Strickland v.
Washington, 466 U. S. 668, 687 (III) (
104 SCt 2052, 80 LE2d 674)
(1984). To establish deficient performance, Appellant must show
that her trial counsel performed in an objectively unreasonable way,
considering all the circumstances and in the light of prevailing
professional norms. See
id. at 687-690 (III) (A). To establish
prejudice, Appellant must show that there is “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694 (III) (B). We
need not address both components of this test if Appellant has failed
to prove one of them. See Walker v. State,
301 Ga. 482, 489 (4) (
801
SE2d 804) (2017).
(a) Appellant contends that media publicity surrounding
Blombergh’s disappearance and the subsequent murder
15
investigation was inherently prejudicial to her defense.
Consequently, she argues, trial counsel was deficient for failing to
move for a change in venue.
At the motion for new trial hearing, trial counsel testified that
he had no recollection of the extent of pre-trial publicity surrounding
the case. However, if the publicity had appeared significant to him,
he testified that he would have considered filing a motion for a
change of venue. Because trial counsel cannot be deficient for failing
to file a meritless motion, Appellant must show that a motion to
change venue “would have been granted had counsel made the
motion.” (Citation omitted.) Mims v. State, 304 Ga. 851, 858-859 (2)
(c) (
823 SE2d 325) (2019). “To prevail on a motion to change venue,
a defendant must show either that (1) the setting of the trial was
inherently prejudicial or (2) the jury selection process showed actual
prejudice to a degree that rendered a fair trial impossible.” (Citation
omitted.)
Id. at 859 (2) (c). Appellant cannot make the first showing,
because she failed to present evidence establishing that publicity
was widespread or that it “contained information that was unduly
16
extensive, factually incorrect, inflammatory or reflective of an
atmosphere of hostility.” (Citation and punctuation omitted.) Id.
Appellant also has not established that any pre-trial publicity
resulted in actual prejudice in this case. In denying the motion for
new trial on this allegation of deficient performance, the trial court
found the following:
[J]ury selection began with the Court qualifying the
entire body of jurors summonsed for jury duty as to
relationship and the statutory questions. Three persons
responded affirmatively to the statutory questions, but
none of those jurors were included in the forty four jurors
identified from which the jury would be selected. During
the jury selection process, four jurors in the first thirty
were disqualified for cause, but three of the four were
disqualified due to reasons unrelated to pretrial publicity,
bias or impartiality concerns regarding the case. Only one
potential juror expressed concerns about being impartial
resulting in disqualification. The jury was then selected
from a panel of thirty qualified jurors, none of which had
demonstrated any prejudice toward the [Appellant],
although some of the jurors may have read or heard
something about the case.
The transcript of the jury selection process supports the trial court’s
findings. Of the jurors seated, four had read newspaper articles
about the murder, but each recalled little, if anything, of what they
17
had read. They each affirmed that they could be fair and impartial.
Given this evidence, Appellant cannot establish actual prejudice in
the jury selection process given that “the key question in this context
is whether those jurors who had heard about the case could lay aside
their opinions and render a verdict based on the evidence.” (Citation
and punctuation omitted.) Mims, 304 Ga. at 859 (2) (c). Because
Appellant has failed to show a reasonable probability that a motion
to change venue would have been meritorious, she cannot establish
that trial counsel was deficient for failing to file the motion. See
id.
(b) Appellant contends that trial counsel was deficient for
failing to object to the admission of several “post-autopsy”
photographs of the victim on the ground that they were gruesome,
irrelevant, unduly inflammatory, and admitted without proper
authentication.6
6 Appellant was tried before the January 1, 2013 effective date of
Georgia’s new Evidence Code. Consequently, we apply the case law then
applicable to this claim of error. We note, however, that
[u]nder our new Evidence Code, the general admissibility of
autopsy photographs is governed by OCGA § 24-4-401, which
defines “relevant evidence” as “evidence having any tendency to
18
In denying the motion for new trial on this claim of ineffective
assistance of counsel, the court found that the victim’s body
consisted of skeletal remains with a small amount of connective
tissue. The medical examiner “conducted a visual examination of the
bones” in determining the cause of death. No soft tissue was incised
and no organs were removed as none remained for a traditional
autopsy. The photographs of the victim’s remains were
authenticated by the medical examiner and used to illustrate his
findings. The court further determined that the probative value of
the photographs in showing bullet holes and fractures was not
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence”; OCGA § 24-4-402, which provides
that “[a]ll relevant evidence shall be admissible, except as limited
by constitutional requirements or as otherwise provided by law or
by other rules”; and OCGA § 24-4-403, which provides that
“[r]elevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations
of undue delay, waste of time, or needless presentation of
cumulative evidence.” Decisions regarding relevance are
committed to the sound discretion of the trial court and the
exclusion of relevant evidence under Rule 403 is an extraordinary
remedy that should be used only sparingly.
(Citations and punctuation omitted.) Venturino v. State, 306 Ga. 391, 394-395
(2) (b) (
830 SE2d 110) (2019).
19
substantially outweighed by any prejudice caused by their alleged
gruesomeness.
While the photographs depicted the victim’s skeletal remains
and were, therefore, somewhat graphic, that does not alter their
admissibility because each of the photographs “was relevant to some
point of the [medical examiner’s] testimony.” Conway v. State, 281
Ga. 685, 691 (5) (
642 SE2d 673) (2007). See also Klinect v. State,
269
Ga. 570, 574 (4) (
501 SE2d 810) (1998) (“Photographs showing the
condition and location of the victim’s body are admissible where
alterations to the body are due to the combined forces of the
murderer and the elements.” (citations omitted)). Because the
photographs would have been admissible over counsel’s objection,
counsel was not deficient for having made no objection. See Smith v.
State,
300 Ga. 532, 536-537 (3) (b) (
796 SE2d 671) (2017) (“Deficient
performance is not shown by counsel’s failure to raise a meritless
objection.” (citation omitted)).
(c) Appellant also argues that counsel was deficient for failing
to object to “irrelevant evidence” of what appeared to be blood
20
spatter on the walls of her living room. The record shows that
counsel had no objection to the introduction of a series of
photographs of the crime scene. Two of the photographs depicted
several small stains on the living room wall. The investigator who
identified the photographs testified that he performed field tests on
the stains and determined that they were “negative for blood.” In its
order denying Appellant’s motion for a new trial, the trial court
concluded that the photographs did not contain evidence that was
prejudicial to the defense. We agree. Moreover, we note that
“photographs of a crime scene offered to show how it existed when
authorities arrived are generally admissible.” (Citation omitted.)
Banta v. State, 282 Ga. 392, 396 (3) (
651 SE2d 21) (2007). Given that
a trial court has broad discretion in balancing the probative and
prejudicial nature of crime scene photographs, see
id., the trial court
in this case would have been authorized to overrule an objection to
these photographs had counsel objected. Therefore, counsel was not
deficient for failing to make a meritless objection. See Smith,
300
Ga. at 536-537 (3) (b).
21
For these reasons, the trial court did not err in denying
Appellant’s claims of ineffective assistance of trial counsel.
Judgment affirmed. All the Justices concur.
DECIDED AUGUST 5, 2019.
Murder. Tift Superior Court. Before Judge Cross.
22
Conger & Smith, Gregory D. Smith, for appellant.
C. Paul Bowden, District Attorney, Jason M. Rea, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, for appellee.
23
