¶1 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.
¶2In the Supreme Court of Georgia
¶3 Decided: October 4, 2022
¶4 S22A0770. BARBER v. THE STATE.
¶5 ELLINGTON, Justice.
¶6 Appellant Rashad Barber appeals his convictions for malice
¶7murder and other crimes arising out of the June 13, 2014 shooting
¶8death of Darius Bottoms. 1 On appeal, Barber contends that the
¶9 1On February 10, 2015, a Fulton County grand jury returned an indictment charging Rashad Barber and co-defendants, David Wallace and Ryan Bowdery, with ten counts stemming from the shooting death of Bottoms, as well as for crimes against three other victims: (1) participation in criminal street gang activity; (2) malice murder of Bottoms; (3) felony murder of Bottoms predicated on aggravated assault with a deadly weapon; (4) felony murder of Bottoms predicated on criminal damage to property in the first degree; (5) felony murder of Bottoms predicated on participation in criminal street gang activity; (6) aggravated assault of Bottoms with a deadly weapon; (7) aggravated assault of Jared Robinson with a deadly weapon; (8) criminal damage to property in the first degree; (9) criminal damage to property in the second degree; and (10) possession of a firearm during the commission of a felony. Barber was tried jointly with Bowdery and Wallace in December 2017, and the jury found Barber guilty on Counts 1 through 10. After a sentencing hearing held on December 21, 2017, the trial court entered judgment on January 4, 2018, and sentenced Barber to serve life in prison for malice murder (Count 2); twenty years to serve in prison consecutive to Count 2 for the aggravated assault of Jared Robinson (Count 7); five years to serve in prison evidence was insufficient to sustain his conviction for murder
¶10because the only evidence inculpating him in this crime was
¶11presented through the testimony of an alleged accomplice, that the
¶12trial judge erred by failing to recuse himself after making
¶13statements revealing a personal bias, and that the trial court erred
¶14when it resentenced him on the charges of participation in criminal
¶15street gang activity and possession of a firearm. For the reasons that
¶16follow, we affirm Barber’s convictions and sentences.
¶17 Viewed in the light most favorable to the verdicts, the evidence
¶18shows that in the days leading up to the June 13, 2014 shooting that
¶19consecutive to Count 7 for criminal damage to property in the second degree (Count 9); and five years to serve in prison concurrent with Count 9 for possession of a firearm during the commission of a felony (Count 10). The judgment stated that participation in criminal street gang activity (Count 1) felony murder counts (Counts 3 through 5), aggravated assault of Bottoms with a deadly weapon (Count 6), and criminal damage to property in the first degree (Count 8) were vacated by operation of law, although Count 1 was not vacated by operation of law, and Counts 6 and 8 actually merged with Count 2. Barber’s trial counsel filed a motion for a new trial on January 24, 2018, and new counsel filed an amended motion for a new trial on March 17, 2020. After a hearing on September 28, 2021, the trial court resentenced Barber, imposing a sentence of twenty years to serve in prison on Count 1, concurrent with Count 2, and changing the five-year sentence on Count 10 to run consecutively to Count 9. The trial court denied Barber’s motion for a new trial on October 20, 2021, and Barber filed a timely notice of appeal. This appeal was docketed to the April 2022 term and submitted for a decision on the briefs. 2 resulted in Bottoms’s death, two rival gangs were involved in an
¶20ongoing dispute related, at least in part, to the recent decision by
¶21one gang member, Kareasha Washington, to leave the “Billy Bad
¶22Asses Bloods” gang (the “Billy” gang) and join the “Neighborhood
¶23Bloods/Rolling Twenties Blood” gang (the “NHB” gang). Washington
¶24left the Billy gang because some members thought she was involved
¶25in the death of another member of the Billy gang. Barber and his co-
¶26defendants, David Wallace and Ryan Bowdery, were members of the
¶27NHB gang.
¶28 Pertinent to this appeal, the evidence showed that on June 6,
¶292014, a blue Acura was stolen four blocks from the area where
¶30Bottoms was shot. Although it was not established who stole the
¶31blue Acura, Washington admitted she and Wallace drove around in
¶32the stolen Acura for several days after it was taken. On June 9, 2014,
¶33a 2014, beige, four-door Hyundai Elantra belonging to James
¶34Terrell, a friend of Barber’s step-father, Jasen Williams, was stolen
¶35from in front of Williams’s home, where Barber lived until just a few
¶36weeks before Terrell’s Hyundai was stolen. Several hours later,
¶37 3 shots were fired into a boarding house located on Sells Avenue, an
¶38area known to be part of the territory of the Billy gang. Shots were
¶39fired at the same boarding house two nights later, on June 12, 2014,
¶40at 4:20 a.m. Police, on this occasion, were able to recover three 9mm
¶41shell casings from outside the boarding house.
¶42 On June 12, 2014, at about 6:20 p.m., Barber, Washington,
¶43Wallace, and a fourth person drove in the stolen Acura to the
¶44Arrowhead Pawn Shop in Clayton County. Video surveillance from
¶45the pawn shop shows Barber, Washington, and Wallace inside the
¶46pawn shop looking at guns while another shopper, Abert Moss, and
¶47her friend, Nashunta Thomas, did the same. Barber is seen on the
¶48video wearing jeans and a white tank top. The video also shows
¶49Barber, Washington, and Wallace leaving the pawn shop, followed
¶50shortly thereafter by Thomas and Moss, who had purchased a 9mm
¶51Jimenez handgun. As Thomas sat in a car in the pawn shop parking
¶52lot with the gun Moss had just purchased, Wallace stuck a different
¶53gun in Thomas’s face and demanded the newly purchased 9mm
¶54handgun. Wallace then ran back to the blue Acura and fled with
¶55 4 Barber, Washington, and the other person.
¶56 Approximately five hours later, at 11:30 p.m. on June 12, 2014,
¶57Barber’s step-father, Williams, was attacked outside his home and
¶58shot multiple times. Selena Barber, Rashad Barber’s mother,
¶59accompanied Williams to the hospital, but she did not tell Barber
¶60about the shooting because she was afraid of what Barber might do.
¶61She and Williams reported the shooting to the police, however,
¶62believing that it might be related to Barber’s dispute with the Billy
¶63gang.
¶64 Within hours of Williams’s shooting, Barber learned that
¶65Williams had been shot, and he, Wallace, Washington, and Bowdery
¶66got together. The four drove around in the blue Acura with
¶67Washington in the driver’s seat, Wallace in the front passenger seat,
¶68and Bowdery and Barber, who Washington stated was carrying both
¶69a revolver and a 9mm handgun, sitting in the rear seats. According
¶70to Washington, she then made plans to meet with a friend who was
¶71a member of the Billy gang near Legacy Drive and Sells Avenue in
¶72Fulton County. Washington, Barber, Wallace, and Bowdery arrived
¶73 5 early at the agreed upon location, so Barber and Bowdery got out of
¶74the car. Washington and Wallace remained in the car until, a few
¶75minutes later, she heard Barber yell, “There go them Billies,” and
¶76she saw Barber and Bowdery run around the corner at the
¶77intersection of Legacy Drive and Sells Avenue. Washington then
¶78heard several gunshots, causing her to get out of the car and run
¶79away. Barber and Bowdery ran back to the stolen Acura, and
¶80Wallace, who was, by now, in the driver’s seat, followed Washington
¶81and told her to get in the car. As they drove away, Washington heard
¶82Barber keep saying, “That was the Billy, that was the Billy who shot
¶83up my Mama’s house.”
¶84 Theda Hall, who lived in a second floor apartment near the
¶85corner of Legacy Drive and Sells Avenue, stepped onto her balcony
¶86in the early morning hours of June 13, 2014, and saw who she
¶87described as two males sitting in the front seat of a vehicle parked
¶88near the corner of Legacy Drive and Sells Avenue. She saw another
¶89male standing outside the vehicle on the sidewalk, and a fourth male
¶90standing outside the vehicle in the shadows. According to Hall, the
¶91 6 male standing near the vehicle, the one she referred to as the
¶92“shooter,” had a gun and was wearing jeans and a white shirt with
¶93thin straps across the shoulders. She described the shooter as being
¶94about 25-30 years old and approximately six feet tall with a
¶95muscular build, medium to medium-dark brown skin, “a little short
¶96haircut,” and possibly a mark or tattoo on his neck. Hall saw the
¶97shooter walk up to the corner of Legacy Drive and Sells Avenue
¶98while the car pulled forward, then heard some yelling, followed by
¶99several gunshots. Hall stated the person standing in the shadows
¶100also had a gun and was talking to the shooter as he stood in the
¶101intersection.
¶102 Bottoms and Jared Robinson had been visiting a friend in an
¶103apartment near the intersection of Legacy Drive and Sells Avenue
¶104in the early morning hours of June 13, 2014. They had driven to the
¶105friend’s apartment in Bottoms’s new silver four-door Hyundai
¶106Elantra, a gift to Bottoms from his grandfather. At approximately
¶1074:00 a.m. on June 13, Bottoms and Robinson left the friend’s
¶108apartment and walked to Bottoms’s vehicle, which they had parked
¶109 7 down the hill from the intersection of Legacy Drive and Sells
¶110Avenue. Robinson told police that as he and Bottoms pulled out of
¶111the parking space onto Legacy Drive facing toward the top of the
¶112hill, they saw a male coming down the hill toward them, yelling, and
¶113pointing aggressively. The person coming toward them then started
¶114shooting at them at a rapid pace, ultimately striking Bottoms
¶115through the windshield with a single gunshot from a 9mm handgun.
¶116Bottoms died at the scene from a gunshot wound to the head.
¶117 Robinson was able to get away but noticed from a distance that
¶118someone was shooting from near the stop sign at the top of Legacy
¶119Drive. Seventeen shells casing were ultimately recovered from the
¶120crime scene; eleven 9mm Luger shell casings were discovered near
¶121the intersection of Legacy Drive and Sells Avenue, and another six
¶122shell casings from a different 9mm handgun were recovered from
¶123farther down the hill.
¶124 During questioning by police, Washington admitted that she
¶125was driving the stolen Acura on the night Bottoms was killed, and
¶126she identified Barber and Bowdery as the males who shot at
¶127 8 Bottoms and Robinson. She also identified Wallace as the male who
¶128stayed at the car during the shooting and drove the Acura as all four
¶129fled after the shooting.
¶130 Video surveillance showed a car matching the stolen Acura’s
¶131description speeding on Sells Avenue moments after the shooting.
¶132Cell phone evidence from Washington and Wallace’s phones
¶133indicated they were together on June 13, 2014, in the area near
¶134Legacy Drive between 3:42 a.m. and 3:59 a.m., just before the
¶135shooting occurred, and in the Cleveland Avenue area of Atlanta
¶136shortly after the shooting, and that Washington called Barber at
¶1377:00 a.m. the morning of the shooting. Cell phone records from
¶138phones linked to Washington, Barber, and Wallace also showed a
¶139significant amount of communication between them leading up to
¶140the robbery in the pawn shop parking lot and the shooting of
¶141Bottoms and between Washington, Barber, Wallace, and Bowdery
¶142throughout the day of the shooting.
¶143 A week after the shooting, police arrested Wallace and another
¶144person in the stolen blue Acura. Police recovered from a backpack
¶145 9 found inside the Acura a 9mm Jimenez handgun that was
¶146determined by a ballistics expert to be the gun stolen from Moss at
¶147the pawn shop and the same gun that fired six of the seventeen shell
¶148casings found at the scene where Bottoms was killed. A second
¶149Jimenez 9mm handgun fired the other eleven shell casings
¶150recovered at the scene of Bottoms’s murder. This same gun, which
¶151was never recovered by police, had also been used at the shooting on
¶152June 12, 2014, at the Sells Avenue boarding house. In July 2014,
¶153Bowdery posted a photo on social media showing him and Barber
¶154holding black guns with the notation, “Shooter featuring Slugger,
¶155we loaded.” “Shooter” was Bowdery’s street name, and “Slug” was
¶156Barber’s street name. A gun in the photo was identified as a Bryco
¶157Jennings Nine or Jimenez JA-Nine, which was described at trial as
¶158the same type of gun as one of the guns used in the shooting on June
¶15913, 2014.
¶160 1. Barber contends that the evidence in support of his
¶161 10 conviction for the murder of Bottoms 2 was insufficient under
¶162Georgia law because the testimony of Washington was not
¶163sufficiently corroborated, as required by OCGA § 24-14-8.3 We
¶164disagree.
¶165 OCGA § 24-14-8 provides, in pertinent part, that, while “[t]he
¶166testimony of a single witness is generally sufficient to establish a
¶167fact,” in felony cases where the only witness is an accomplice to the
¶168crimes, the witness’s testimony alone will be insufficient to support
¶169a defendant’s convictions. Thus, “[w]hen the only witness is an
¶170accomplice, corroborating evidence is required to support a guilty
¶171verdict.” Raines v. State, 304 Ga. 582, 587 (2) (820 SE2d 679) (2018).
¶172 Although OCGA § 24-14-8 provides that corroboration is required[,] . . . only slight evidence of corroboration is
¶173 2 Barber does not challenge his convictions for participation in criminal street gang activity, aggravated assault, criminal damage to property, and possession of a firearm during the commission of a felony, and we no longer review sua sponte the sufficiency of the evidence, except with respect to murder convictions resulting in the death penalty. See Davenport v. State, 309 Ga. 385, 398-399 (4) (b) (846 SE2d 83) (2020). 3 Barber frames this argument as a sufficiency of the evidence issue
¶174under Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). But the requirement that an accomplice’s testimony be corroborated is a requirement only of Georgia evidentiary law. Accordingly, to the extent that Barber seeks to state a Jackson claim for failure of corroboration, that claim fails because Jackson requires no such thing. 11 required. The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime. The evidence need not be sufficient in and of itself to warrant a conviction, so long as it is independent of the accomplice’s testimony and directly connects the defendant to the crime or leads to the inference of guilt. The sufficiency of the corroboration is a matter for the jury to decide.
¶175(Citations and punctuation omitted.) Id. at 588 (2). “[T]he
¶176independent evidence must corroborate both the identity of the
¶177defendant and the fact of his participation in the crime.” (Citation
¶178and punctuation omitted.) Pittman v. State, 300 Ga. 894, 896 (1) (799
¶179SE2d 215) (2017) (setting out requirement for corroboration of
¶180accomplice testimony under former OCGA § 24-4-8). See also
¶181Ramirez v. State, 294 Ga. 440, 442 n.5 (754 SE2d 325) (2014) (noting
¶182that the provisions of former OCGA § 24-4-8 were carried forward
¶183into the current Evidence Code as OCGA § 24-14-8).
¶184 Even assuming the jury found Washington to be an accomplice,
¶185other evidence that did not come from Washington, including the
¶186pawn shop video, Hall’s testimony, cell phone record evidence, and
¶187 12 evidence of Barber’s motive for shooting in retaliation for the gang-
¶188related shooting of his step-father, corroborated Washington’s
¶189testimony.
¶190 According to Washington, Barber stepped out of the stolen
¶191Acura and, while standing near the intersection of Legacy Drive and
¶192Sells Avenue, shouted, “There go them Billies.” Barber then ran
¶193around the corner and started shooting at Bottoms and Robinson.
¶194She testified that immediately after the shooting, Barber explained
¶195that he shot Bottoms and Robinson because they were the ones who
¶196“shot up” his mother’s house. Hall described seeing four men in and
¶197around a car at the same intersection on the morning of June 13,
¶1982014, then heard yelling, followed by multiple gunshots. She
¶199described the shooter as wearing clothing similar to what Barber
¶200was seen wearing during the robbery at the pawn shop just hours
¶201before the shooting.
¶202 Hall’s description of the shooter’s clothing, location, and
¶203physical characteristics was consistent with Washington’s trial
¶204testimony and statements to police about what Barber was wearing
¶205 13 and doing at the time of the shootings. Hall’s description of the
¶206shooter’s clothing was also consistent with video evidence of the
¶207clothing Barber was wearing during the robbery at the pawn shop
¶208that took place just hours before Bottoms was killed. The jury could
¶209decide for itself at trial how closely the description of the man
¶210described by Hall resembled Barber. See Johnson v. State, 288 Ga.
¶211803, 805-806 (2) (708 SE2d 331) (2011) (Witness’s physical
¶212description of shooter and description of shooter’s clothing, although
¶213not the strongest corroboration, was sufficient to corroborate
¶214accomplice’s testimony identifying the defendant as the shooter.).
¶215 In addition, evidence from the cell phone records of
¶216Washington, Barber, Wallace, and Bowdery indicated that Barber
¶217was associated with each of them, that they were communicating
¶218leading up to the time of the shooting, and that Washington called
¶219Barber at 7:00 a.m. the morning of the shooting. The jury was also
¶220authorized to determine from the pawn shop video and Bowdery’s
¶221social media post that hours before the shooting and after the
¶222shooting Barber was in possession of one of the 9mm guns used to
¶223 14 shoot Bottoms.
¶224 This evidence provided sufficient corroboration of
¶225Washington’s testimony. 4 See Poole v. State, 312 Ga. 515, 522 (863
¶226SE2d 93) (2021) (Physical evidence collected at scene, witness’s
¶227description of events, postings to defendant’s social media accounts,
¶228and cell phone data showing defendant and co-defendants
¶229communicating during time span closely coinciding with the
¶230shooting and in the area near the crime scene when the crime
¶231occurred was sufficient to corroborate accomplice testimony.);
¶232Sheard v. State, 300 Ga. 117, 119 (1) (793 SE2d 386) (2016)
¶233(Evidence that defendant was observed discussing plans to rob the
¶234victim, a person matching the defendant’s description was seen in
¶235the area at the time of the crimes, the defendant was in possession
¶236of a large amount of cash after the crimes, and the defendant had a
¶237motive to commit the crimes was sufficient to corroborate the
¶238 4 Because Barber did not claim any error related to the court’s jury instruction on corroboration, the only question decided in this appeal is whether a properly instructed jury could have found that Washington’s testimony was sufficiently corroborated. 15 testimony of his alleged accomplice under former OCGA § 24-4-8.);
¶239Crawford v. State, 294 Ga. 898, 901-902 (1) (757 SE2d 102) (2014)
¶240(Phone records demonstrating communications between co-
¶241defendants were sufficient to corroborate accomplice’s testimony
¶242inculpating the defendant.); Threatt v. State, 293 Ga. 549, 551-552
¶243(1) (748 SE2d 400) (2013) (Defendant’s false statements to police and
¶244communications between co-defendants both before and after the
¶245crimes corroborated accomplice’s testimony.).
¶246 2. Barber contends the trial judge was required to sua sponte
¶247recuse himself after making statements Barber alleges called into
¶248question the judge’s impartiality. Barber did not move to recuse the
¶249trial judge during trial, however, and there is no evidence in the
¶250record indicating that Barber followed the procedures set out in
¶251Uniform Superior Court Rule 25.1 for moving to recuse a judge.5
¶252 5Uniform Superior Court Rule 25.1 provides, in pertinent part: All motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be timely filed in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded. Filing and presentation to the judge shall be not later than five (5) days
¶253 16 Accordingly, this enumeration of error has not been preserved for
¶254appeal. See Lopez v. State, 310 Ga. 529, 537 (6) (852 SE2d 547)
¶255(2020).
¶256 3. Barber also asserts the trial court erred when it resentenced
¶257him on his convictions for participation in gang activity and
¶258possession of a firearm during the commission of a crime. After
¶259reviewing the record, we discern no error in Barber’s sentences.
¶260 As stated, Barber was found guilty, in pertinent part, of
¶261participation in criminal street gang activity (Count 1), malice
¶262murder (Count 2), and felony murder predicated on the underlying
¶263felony of participation in criminal street gang activity (Count 5).
¶264With regard to Barber’s conviction on Count 1 for participation in
¶265gang activity, the trial court, in its initial sentencing order,
¶266concluded that this conviction was vacated by operation of law, and
¶267therefore, imposed no sentence for Count 1. Barber, however, should
¶268 after the affiant first learned of the alleged grounds for disqualification, and not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification, unless good cause be shown for failure to meet such time requirements. 17 have been sentenced on Count 1 because his conviction on Count 5
¶269for felony murder predicated on the underlying felony of
¶270participation in gang activity was vacated by operation of law in
¶271light of his conviction on Count 2 for malice murder. See Malcolm v.
¶272State, 263 Ga. 369 (5) (434 SE2d 479) (1993). This left, as a matter
¶273of law, no felony murder charge in which to merge Barber’s
¶274conviction on Count 1 and nothing to require the vacation of his
¶275conviction on Count 1. See Carter v. State, 299 Ga. 1, 2 (2) (785 SE2d
¶276532) (2016). Accordingly, Barber should have been sentenced for his
¶277participation in gang activity conviction at his original sentencing
¶278hearing. Similarly, the trial court originally ordered that Barber’s
¶279sentence on Count 10 for possession of a firearm during the
¶280commission of a felony run concurrent with his other sentences,
¶281despite mandatory language in OCGA § 16-11-106 (b) that an
¶282individual convicted of possession of a firearm during the
¶283commission of a felony “shall be punished by confinement for a
¶284period of five years,” and that this sentence shall “run consecutively
¶285to any other sentence which the person has received.”
¶286 18 “A trial judge has the authority to correct a void sentence at
¶287any time, and a sentence is void if the court imposes punishment
¶288that the law does not allow.” (Citations and punctuation omitted.)
¶289Parrott v. State, 312 Ga. 580, 582 (864 SE2d 80) (2021). Because the
¶290trial court’s original sentencing order did not include the sentences
¶291required by law for Barber’s convictions on Counts 1 and 10 of the
¶292indictment, the trial court’s subsequent correction of those void
¶293sentences was not only authorized but was required. 6
¶294 Judgment affirmed. All the Justices concur.
¶295 6 We reject Barber’s contention that the trial court was without authority to correct his sentence for Count 1, participation in gang activity, on the theory that the State invited the error by incorrectly informing the trial court during sentencing that Count 1 merged into the felony murder count predicated on the felony charge of participation in gang activity. Even assuming the State’s conduct induced the trial court’s failure to sentence Barber on Count 1, the sentence imposed by the court was less than the sentence required by OCGA § 16-15-4 (m) and, therefore, was void, and its illegality is not an issue that can be waived by either party. See Curtis v. State, 275 Ga. 576, 577-578 (1) (571 SE2d 376) (2002) (A challenge to the legality of a sentence the law does not allow cannot be waived because a “judgment which is void for any cause is a mere nullity and it may be so held in any court where it becomes material to the interest of the parties to consider it.” (citation and punctuation omitted)), overruled on other grounds, Williams v. State, 287 Ga. 192 (695 SE2d 244) (2010); Zipperer v. State, 299 Ga. App. 792, 794 (2) (683 SE2d 865) (2009) (“[A] defendant’s acquiescence to an illegal sentence . . . cannot render an otherwise illegal sentence valid through waiver[,]” because “a void sentence in law amounts to no sentence at all.” (citations omitted)). 19