¶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: March 21, 2023
¶4 S23A0110. MEADOWS v. THE STATE.
¶5 ELLINGTON, Justice.
¶6 Roden Meadows appeals his convictions for murder,
¶7aggravated assault, and possession of a firearm during the
¶8commission of a felony arising from the fatal shooting of Jason
¶9Williams. 1 On appeal, Meadows contends that the evidence was
¶10 1The crimes occurred on May 15, 2018. On August 14, 2018, Meadows was indicted by a DeKalb County grand jury for malice murder (Count 1); felony murder (Count 2); aggravated assault with a deadly weapon (Count 3); and possession of a firearm during the commission of a felony (Count 4). In August 2019, a jury found Meadows guilty on all counts. On September 10, 2019, the trial court sentenced Meadows to life imprisonment on Count 1 and a consecutive 5-year sentence on Count 4 and purported to both merge Count 3 into Count 1 and also impose a 20-year sentence on Count 3 to run concurrent with Count 1. Count 2 was vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). Meadows filed a motion for a new trial on October 4, 2019, which was amended by new counsel on March 22, 2021. After both the State and Meadows waived an evidentiary hearing, the trial court denied the motion for new trial on June 24, 2022. Meadows filed a timely notice of appeal. The case was docketed in this Court to the term beginning in December 2022 and submitted for a decision on the briefs. constitutionally insufficient and that this Court should exercise its
¶11authority under OCGA §§ 5-5-20 and 5-5-21 as the “thirteenth juror”
¶12and grant him a new trial. He also argues that the trial court erred
¶13in three instances by failing to rebuke the prosecutor for making
¶14improper and prejudicial statements during closing arguments. We
¶15conclude that the evidence is sufficient to sustain Meadows’s
¶16convictions and that this Court does not have authority under the
¶17cited statutory law to sit as the “thirteenth juror.” We also conclude
¶18that Meadows failed to preserve his challenges to two of the
¶19prosecutor’s statements during closing arguments, and with respect
¶20to the third instance, even if the trial court erred by failing to rebuke
¶21the prosecutor, any error was harmless. Although not raised by
¶22Meadows on appeal, we have identified in the record a merger error
¶23related to the sentence the trial court entered on Count 3 of the
¶24indictment. Because we cannot resolve this sentencing issue based
¶25on the record before us, we vacate the merger of and sentence on
¶26Count 3 and remand to the trial court for further proceedings.
¶27 1. Viewed in the light most favorable to the verdicts, the
¶28 2 evidence presented at trial showed the following. On the day of the
¶29crimes, Meadows and an unidentified male met Williams in the
¶30parking lot of a DeKalb County grocery store. The three men left the
¶31grocery store parking lot in a blue sedan driven by the unidentified
¶32male, with Meadows seated in the front passenger seat and Williams
¶33seated in the rear seat on the passenger’s side. The three men drove
¶34to a nearby gas station, where Meadows went inside the store to
¶35make a purchase, leaving the driver and Williams inside the car.
¶36While Meadows was in the store, the driver stood near the rear of
¶37the car and pumped gas until Meadows returned, spoke to the
¶38driver, and remained at the rear of the car pumping gas while the
¶39driver returned to the car. Meanwhile, Williams got out of the car
¶40and walked into the store. When Williams went in the store,
¶41Meadows walked around the car to the rear passenger side where
¶42Williams had been seated and looked inside the car. Meadows then
¶43finished pumping the gas and returned to the front passenger seat.
¶44Williams returned to the car after a few minutes, got into the back
¶45seat, again sitting behind Meadows, and within 20 seconds of
¶46 3 returning to the car, Williams was shot in the chest. After he was
¶47shot, Williams opened the car door and ran a short distance before
¶48he fell to the ground as Meadows and the unidentified driver sped
¶49away with the car’s rear passenger door still open. Williams died at
¶50the scene.
¶51 Police were able to identify Meadows as one of the men inside
¶52the car at the time of the shooting based on video surveillance and
¶53evidence that Meadows’s debit card and PIN number were used
¶54inside the gas station minutes before the shooting. Investigators also
¶55discovered on Williams’s cellular phone an exchange of 36 text
¶56messages with a telephone number ending in “2483” on the day of
¶57the shooting. In this exchange, Williams’s phone received messages
¶58about a plan to meet at the DeKalb County grocery store to conduct
¶59a financial transaction. Just before 4:00 p.m. on the day of the
¶60crimes, Williams’s phone received a final text message from the
¶61phone number ending in “2483” stating, “Pulling in” to the grocery
¶62store parking lot.
¶63 After the shooting, a police officer interviewed Marcus Chivers,
¶64 4 Meadows’s step-brother. Chivers told the officer that Meadows
¶65owned a .40-caliber pistol that looked similar to the officer’s Glock
¶66pistol. During the search of Meadows’s residence, investigators
¶67discovered a box of .40-caliber hollow-point Winchester bullets in
¶68Meadows’s bedroom. At trial, GBI forensic firearms expert testified
¶69that the bullet recovered from Williams’s body was a .40-caliber
¶70hollow-point bullet fired from a Smith & Wesson pistol. She stated
¶71the bullet could have been manufactured by Winchester or
¶72Remington, but her analysis was inconclusive on the exact
¶73manufacturer.
¶74 The medical examiner testified that Williams died as the result
¶75of a single gunshot wound from a .40-caliber bullet. An autopsy
¶76revealed an entrance and exit wound on Williams’s forearm and an
¶77atypical entrance wound to the left side of Williams’s chest, the
¶78shape of which indicated the bullet had passed through an object
¶79prior to entering Williams’s chest. Based on the trajectory of the
¶80bullet and characteristics of the wounds, the medical examiner
¶81opined that a single bullet entered Williams’s forearm, exited the
¶82 5 forearm, and entered his chest. The medical examiner testified that
¶83she believed Williams was shot while in a defensive position with
¶84his arm raised in front of his body, and based on the absence of soot
¶85or stippling near the wounds, that the bullet was fired from a
¶86distance of at least three to four feet.
¶87 2. Meadows contends that the evidence was constitutionally
¶88insufficient to support his convictions for malice murder and
¶89possession of a firearm during the commission of a felony. We
¶90disagree.
¶91 When evaluating the sufficiency of the evidence as a matter of
¶92federal constitutional due process, we view the evidence presented
¶93at trial in the light most favorable to the verdicts and consider
¶94whether it was sufficient to authorize a rational trier of fact to find
¶95the defendant guilty beyond a reasonable doubt of the crimes of
¶96which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319
¶97(III) (B) (99 SCt 2781, 61 LE2d 560) (1979); Moore v. State, 311 Ga.
¶98506, 508 (2) (858 SE2d 676) (2021). This “limited review leaves to
¶99the jury the resolution of conflicts in the evidence, the weight of the
¶100 6 evidence, the credibility of witnesses, and reasonable inferences to
¶101be made from basic facts to ultimate facts.” Rich v. State, 307 Ga.
¶102757, 759 (1) (a) (838 SE2d 255) (2020) (citation and punctuation
¶103omitted).
¶104 Meadows asserts that the evidence presented at trial pointed
¶105to the driver being responsible for shooting Williams and that he
¶106was merely present in the car when Williams was shot. In support
¶107of this argument, Meadows points to the medical examiner’s
¶108testimony that no gun powder or stippling was found on Williams’s
¶109body and that, in her opinion, the gun used to shoot Williams was
¶110fired from three to four feet away. Meadows argues that this
¶111evidence shows it was highly unlikely that Meadows shot Williams
¶112from the front passenger seat.
¶113 When properly viewed in the light most favorable to the
¶114verdicts, however, the evidence presented at trial showed that
¶115Meadows and the unidentified driver actively arranged to meet
¶116Williams at a designated parking lot, and the three men then drove
¶117to a gas station, where the driver and Meadows conversed and
¶118 7 pumped gas while Williams went into the store. When Williams
¶119returned to the car, someone inside the car, either Meadows or the
¶120unidentified driver, shot Williams using a .40-caliber pistol loaded
¶121with .40-caliber hollow-point bullets manufactured by either
¶122Winchester or Remington. Meadows then fled the scene with the
¶123driver of the car, without rendering any aid or assistance to
¶124Williams. In addition, the evidence showed that Meadows was
¶125known to own a .40-caliber pistol like the one used in the shooting
¶126and .40-caliber hollow-point Winchester bullets were discovered by
¶127police in Meadows’s bedroom. That evidence was sufficient for the
¶128jury to find Meadows guilty beyond a reasonable doubt of malice
¶129murder and possession of a firearm during the commission of a
¶130felony as either a direct participant or, if the driver was the actual
¶131shooter, as Meadows contends, as a party to the crimes. See Jackson,
¶132443 U. S. at 319 (III) (B); OCGA § 16-2-20 (b) (3) and (4) (a person is
¶133a party to a crime if he “aids or abets in the commission of the crime”
¶134or intentionally “advises, encourages, hires, counsels, or procures
¶135another to commit the crime”); Williams v. State, 313 Ga. 325, 328
¶136 8 (1) (869 SE2d 389) (2022) (conviction as a party to the crime requires
¶137evidence of common intent and may be inferred from “presence,
¶138companionship, and conduct before, during, and after the offense”)
¶139(citation and punctuation omitted); Rawls v. State, 310 Ga. 209, 218-
¶140219 (4) (a) (850 SE2d 90) (2020) (fact that a suspect fled the scene of
¶141the crime points to the question of guilt in a circumstantial manner).
¶142 3. Meadows next argues that the State failed to prove the .40-
¶143caliber bullets found in his bedroom were from the same
¶144manufacturer as the bullets used in the shooting, and therefore, this
¶145Court should exercise its discretion as the thirteenth juror under
¶146OCGA §§ 5-5-20 and 5-5-21 2 and grant him a new trial. This
¶147argument has no merit, however, because the text of the statute
¶148makes clear that this Court does not have authority to grant a
¶149motion for new trial based on OCGA §§ 5-5-20 or 5-5-21, a conclusion
¶150 2 The grounds set forth in OCGA §§ 5-5-20 and 5-5-21 authorize “the trial judge to sit as a ‘thirteenth juror’ and to exercise his or her discretion to weigh the evidence on a motion for new trial alleging these general grounds.” State v. Holmes, 304 Ga. 524, 531 (3) (820 SE2d 26) (2018). Under these provisions, a trial judge, not the appellate courts, may grant a new trial if the trial judge concludes the verdict of the jury is “contrary to . . . the principles of justice and equity,” OCGA § 5-5-20, or the verdict is “decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21. 9 that our well-established case law confirms. See, e.g., Henderson v.
¶151State, 304 Ga. 733, 734 (2) (822 SE2d 228) (2018) (rejecting
¶152appellant’s request to grant a new trial based on OCGA §§ 5-5-20
¶153and 5-5-21 because appellate courts “have no authority to grant such
¶154a request”); Willis v. State, 263 Ga. 597, 598 (1) (436 SE2d 204)
¶155(1993) (whether to grant a new trial under OCGA § 5-5-21 is solely
¶156in the discretion of the trial court; an appellate court does not have
¶157the same discretion).
¶158 4. During closing arguments, the prosecutor, in three separate
¶159instances, made statements which prompted defense counsel to
¶160object on the ground that the statements were improper and highly
¶161prejudicial. On appeal, Meadows asserts that the trial court
¶162committed reversible error when it sustained his objections but
¶163failed to rebuke, or sufficiently rebuke, the prosecutor. We disagree
¶164in each of the challenged instances.
¶165 Under OCGA § 17-8-75,
¶166 [w]here counsel in the hearing of the jury makes statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and
¶167 10 prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
¶168“A trial court has broad discretion when responding to an alleged
¶169violation of OCGA § 17-8-75,” Parker v. State, 276 Ga. 598, 599 (3)
¶170(581 SE2d 7) (2003), and any error in “not fulfilling its duty under
¶171OCGA § 17-8-75 is subject to harmless error analysis.” Stephens v.
¶172State, 307 Ga. 731, 734 (1) (a) n.4 (838 SE2d 275) (2020).
¶173 (a) During closing argument, Meadows objected and moved for
¶174a mistrial based on the prosecutor’s argument referencing trial
¶175evidence showing that Meadows was known to carry a .40-caliber
¶176pistol, .40-caliber bullets were found in his bedroom, and the gun
¶177used to shoot Williams was not found. Meadows argued this
¶178statement was improper because evidence related to a .40-caliber
¶179pistol investigators found during a search of Meadows’s car was
¶180determined by the trial court in pre-trial proceedings to be
¶181inadmissible at trial. Following Meadows’s objection, the trial court
¶182 11 and the parties engaged in a long colloquy outside the presence of
¶183the jury, after which, defense counsel withdrew his motion for
¶184mistrial and the court sustained Meadows’s objection. The trial
¶185court then stated it would instruct the jury to disregard the
¶186prosecutor’s statements about the fact that the gun used in the
¶187shooting was not presented as evidence at trial, and defense counsel
¶188agreed, stating, “Yes, judge, that’s what I would ask.” When the jury
¶189returned to the court room, the court instructed the jury that
¶190Meadows’s objection was sustained, that closing arguments are not
¶191evidence, and that they should disregard the prosecutor’s
¶192statements about the absence of the gun.
¶193 Under these circumstances, we need not determine whether
¶194the trial court erred by failing to rebuke the prosecutor because the
¶195trial court gave the agreed upon curative jury instructions, after
¶196which Meadows failed to request any additional relief. Having
¶197acquiesced to the remedy fashioned by the trial court, Meadows
¶198cannot complain about the trial court’s failure to further rebuke the
¶199prosecutor. See Stephens, 307 Ga. at 733-734 (1) (a) (“Where the
¶200 12 objection to the prejudicial matter is sustained, the court has no duty
¶201to rebuke counsel or give curative instructions unless specifically
¶202requested by the defendant.”) (citation and punctuation omitted);
¶203Ingram v. State, 290 Ga. 500, 503-504 (2) (722 SE2d 714) (2012) (“A
¶204party cannot complain of a judgment, order, or ruling that his own
¶205conduct produced or aided in causing.”) (citation and punctuation
¶206omitted); Parker, 276 Ga. at 599 (3) (“A trial court’s ruling will not
¶207be reversed for failing to go further than the objecting party
¶208requests.”).
¶209 (b) Meadows also contends the trial court erred when it failed
¶210to rebuke the prosecutor after she stated in closing argument that
¶211the State had been unable to retrieve the contents of certain
¶212electronic devices investigators discovered in Meadows’s bedroom
¶213and that if investigators had found any evidence in the devices, it
¶214would have been presented to the jury. These statements were made
¶215in response to defense counsel’s argument that the State had failed
¶216to properly investigate the crimes or connect the electronic devices
¶217to Meadows. Pretermitting whether this argument was improper
¶218 13 under OCGA § 17-8-75, a trial court has no duty to rebuke a
¶219prosecutor unless specifically requested by the defendant. See
¶220Cheley v. State, 299 Ga. 88, 95 (5) (786 SE2d 642) (2016) (“[I]t is well
¶221established that a trial court has no duty to rebuke a prosecutor
¶222under [OCGA § 17-8-75] unless specifically requested by the
¶223defendant.”); Woodham v. State, 263 Ga. 580 (1) (a) (439 SE2d 471)
¶224(1993) (“trial court has no duty to rebuke counsel or give curative
¶225instructions unless specifically requested by the defendant”). Here,
¶226Meadows’s objection to the prosecutor’s comment about the
¶227electronic devices was sustained, and Meadows did not ask the court
¶228to rebuke the prosecutor or for any other corrective action.
¶229Accordingly, the trial court, in this instance, had no duty to rebuke
¶230the prosecutor.
¶231 (c) Finally, Meadows asserts the trial court erred by failing to
¶232rebuke the prosecutor for improperly commenting on Meadows’s
¶233right to remain silent during closing arguments. The record shows
¶234that during this portion of the State’s closing, the prosecutor argued,
¶235based on reasonable inferences from the evidence, that Meadows
¶236 14 was the person who texted Williams and arranged to meet him in
¶237the grocery store parking lot and that Meadows knew the driver of
¶238the blue sedan. The prosecutor stated:
¶239 How did the person, the driver, know to come and pick up Mr. Meadows and the victim? Somebody had to have contacted this person, reasonably, right? Unless they’re saying it’s an Uber driver . . . people don’t, normally, sit in the front seat of a car of a person that they don’t know. But they do with a person that they do know. They also don’t normally pay for gas for people they don’t know. But they do for people that they do know.
¶240 They also don’t go around the other side and help pump gas in the blue sedan for people they don’t know. But they do for people that they do know. So it’s reasonable to assume [Meadows] knew who the driver was and knows who the driver is of that blue sedan.
¶241Defense counsel objected on the ground that the State was
¶242commenting on Meadows’s right to remain silent and asked that the
¶243court admonish the prosecutor in front of the jury and give a charge
¶244on a defendant’s choice not to testify. The trial court sustained the
¶245objection and charged the jury that closing arguments are not
¶246evidence, that a defendant does not have to present any evidence nor
¶247testify, and that if a defendant chooses not to testify, the jury was
¶248 15 not to consider that in any way in making its decision. The trial court
¶249also instructed the jury in its final charge that “[e]vidence does not
¶250include . . . opening or closing remarks of the attorneys,” and the
¶251“defendant does not have to present any evidence nor testify.”
¶252 On this record, even assuming the trial court erred in this
¶253instance by not rebuking the prosecutor under OCGA § 17-8-75, any
¶254error was harmless. Considering the trial court’s instructions and
¶255the strong evidence of Meadows’s guilt, including the gas station
¶256video showing Meadows’s conduct before and after the crimes, we
¶257conclude “it is highly probable that neither [these] statement[s] by
¶258the prosecutor in closing argument, nor any alleged failure of the
¶259trial court to comply with OCGA § 17-8-75, contributed to the
¶260verdict.” Taylor v. State, 303 Ga. 583, 587 (3) (814 SE2d 302) (2018)
¶261(any error by prosecutor in commenting on the defendant’s right to
¶262remain silent was harmless considering overwhelming evidence of
¶263the defendant’s guilt and trial court’s instruction to jury that
¶264statements of counsel during closing are not evidence) (citation and
¶265punctuation omitted).
¶266 16 5. Although not raised by Meadows on appeal, the record
¶267reflects that the trial court merged Count 3, the aggravated assault
¶268count, into Count 1, the malice murder count, but also imposed a 20-
¶269year sentence on Count 3. A separate judgment of conviction and
¶270sentence on Count 3 would be authorized, however, only if the
¶271indictment averred and the State proved that Meadows committed
¶272an aggravated assault independent of the act that resulted in
¶273Williams’s death. See Nazario v. State, 293 Ga. 480, 480 (746 SE2d
¶274109) (2013) (“A conviction that merges with another conviction is
¶275void - a nullity- and a sentence imposed on such a void conviction is
¶276illegal and will be vacated if noticed by this Court . . . .”); Culpepper
¶277v. State, 289 Ga. 736, 738-739 (715 SE2d 155) (2011) (explaining that
¶278a non-fatal aggravated assault and a fatal aggravated assault that
¶279are separated by a “deliberate interval” may support separate
¶280convictions and sentences). These circumstances can often require
¶281us to vacate a defendant’s sentence and remand to the trial court for
¶282new findings and resentencing. See Wheeler v. State, 314 Ga. 484,
¶283487 (2) (877 SE2d 565) (2022). Remand is not necessary in this
¶284 17 instance, however, because the indictment charged Meadows with
¶285both murder and aggravated assault by alleging that he shot
¶286Williams and there was no evidence showing that the shooting
¶287occurred other than in a single transaction. Accordingly, Count 3
¶288necessarily merged into the malice murder conviction as a matter of
¶289fact, and the separate sentence for aggravated assault must be
¶290vacated. See Miller v. State, 309 Ga. 549, 552 (3) (847 SE2d 344)
¶291(2020) (When there is “no evidence to suggest the occurrence of an
¶292aggravated assault independent of the act which caused the victim’s
¶293death[,] . . . a jury’s guilty verdict on the aggravated assault merges
¶294as a matter of fact with the malice murder verdict for sentencing
¶295purposes.”) (citation and punctuation omitted).
¶296 Judgment affirmed and sentence vacated in part. All the Justices concur.
¶297 18