¶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: May 31, 2023
¶4 S23A0276. PEREZ v. THE STATE.
¶5 WARREN, Justice.
¶6 Geovanni Perez was convicted of felony murder and a firearm
¶7offense in connection with the shooting death of Rahmier Gardner. 1
¶8 The crimes occurred on July 29, 2018. In December 2018, a Gwinnett 1
¶9County grand jury indicted Perez, Estefania Castro, and Khalid Bays, individually and as parties to the crime, for two counts of felony murder (based on armed robbery and conspiracy to commit armed robbery), armed robbery, and conspiracy to commit armed robbery. Perez and Bays were also indicted for malice murder, felony murder (based on aggravated assault), aggravated assault, and possession of a firearm during the commission of a felony; Castro was also indicted for tampering with evidence. Perez alone was tried from September 13 to 20, 2021; the jury found him guilty of voluntary manslaughter as a lesser offense of malice murder and of the remaining crimes. The trial court sentenced him to serve 20 years for voluntary manslaughter, a consecutive sentence of life in prison without the possibility of parole for felony murder based on armed robbery, and five consecutive years for possession of a firearm during the commission of a felony. The remaining counts were merged or vacated by operation of law. The trial court later amended the final disposition form to reflect that the voluntary-manslaughter verdict was vacated by operation of law. The record does not indicate how Castro’s and Bays’s cases were resolved. Perez filed a timely motion for new trial, which he later amended through new counsel. After a hearing, the trial court denied the motion in In this appeal, Perez contends that the evidence was constitutionally
¶10insufficient to support his conviction for felony murder based on
¶11armed robbery, that the trial court erred by denying his motions to
¶12suppress certain evidence, and that he was improperly sentenced.
¶13Seeing no error, we affirm.
¶14 1. Viewed in the light most favorable to the verdicts, the
¶15evidence presented at Perez’s trial showed the following. Around
¶1611:20 p.m. on July 29, 2018, investigators responded to a 911 call
¶17reporting a shooting in the parking lot of a bowling alley on
¶18Lawrenceville Highway in Lilburn. Law enforcement officials found
¶19Gardner, who had been shot multiple times, dead in the parking lot,
¶20with money sticking out of his shorts pockets. The medical examiner
¶21who later performed Gardner’s autopsy determined that he had been
¶22shot at least six times at “close range” and “contact range,” resulting
¶23in wounds to his chest; head; chin; upper and middle back; and left
¶24October 2022. Perez filed a timely notice of appeal directed to the Court of Appeals, which properly transferred the appeal to this Court, where the case was docketed to the term beginning in December 2022 and submitted for a decision on the briefs. 2 upper arm, elbow, and forearm. The examiner removed two .380
¶25bullets and a .45-caliber bullet from Gardner’s body.
¶26 A witness to the shooting heard what she thought were
¶27“firecrackers” and then saw Gardner’s body on the ground as a silver
¶28Nissan Sentra sped out of the parking lot. The lead investigator for
¶29the case obtained a surveillance video recording from the parking
¶30lot, which was played for the jury at trial. The investigator testified
¶31that the recording, the quality of which he described as poor, showed
¶32that at 11:03 p.m., Gardner, who appeared to be talking on a cell
¶33phone, left the bowling alley and walked to the parking lot, where
¶34he stood by his truck. At 11:07 p.m., a car pulled into the parking
¶35lot and backed into a parking space; Gardner then walked to the car,
¶36and a few minutes later, there was “some movement . . . at the car”
¶37before the car sped away. The recording did not contain any other
¶38information relevant to the investigation.
¶39 After Gardner’s murder, the investigator searched Gardner’s
¶40truck and found marijuana and cocaine. He also obtained Gardner’s
¶41cell phone records, which showed that a phone number ending
¶42 3 in -1131 contacted Gardner’s phone at 10:14, 11:02, and 11:07 p.m.
¶43on the night of the shooting.
¶44 The investigator then obtained search warrants for the cell
¶45phone records, including cell site location information (“CSLI”),
¶46connected to the -1131 phone number. The records showed that four
¶47days after the shooting, the -1131 phone number was changed to a
¶48phone number ending in -9983, and that both numbers were
¶49associated with an address on South Elizabeth Place in Atlanta. The
¶50CSLI showed that the cell phone associated with the -1131 number
¶51was in Atlanta at 10:14 p.m., in Lilburn at 11:02 p.m., near the
¶52bowling alley on Lawrenceville Highway at 11:07 p.m., and then in
¶53Atlanta again at 12:02 a.m.2
¶54 At some point, investigators identified Estefania Castro as a
¶55suspect in connection with the shooting; she was arrested in October
¶562018. During a search of her silver Nissan Sentra, investigators
¶57found blood inside the rear passenger-side door and under the
¶58 2 A disc containing the cell phone records was admitted into evidence at trial. 4 passenger-side backseat; testing later showed that the blood was
¶59Gardner’s. Investigators also found a .45-caliber bullet under the
¶60backseat. A firearms examiner determined that this bullet and the
¶61.45-caliber bullet that was removed from Gardner’s body had been
¶62fired from the same .45-caliber pistol. He also concluded that the
¶63two .380 bullets that were removed from Gardner’s body were fired
¶64from the same .380 pistol.
¶65 Investigators interviewed Castro, who implicated Perez in the
¶66shooting. The lead investigator then obtained a warrant to search
¶67the house on South Elizabeth Place. Investigators found Perez there
¶68and arrested him; they also found his cell phone, which was
¶69associated with the -1131 and -9983 phone numbers. The lead
¶70investigator then obtained a search warrant for the phone; a
¶71download of the phone’s contents showed the following. At 7:08 p.m.
¶72on the day before the shooting, Perez’s phone sent a text message
¶73saying “U tryna hit a lick” to Castro’s phone. Around 1:30 p.m. on
¶74the day of the shooting, a phone number associated with Khalid
¶75Bays sent text messages to Perez’s phone saying, “I got everything
¶76 5 set up”; “U tryna do it today wen u get off”; and “He green asf.”3
¶77Perez’s phone responded, “im just tryna c wat Steph say.” Perez’s
¶78phone and Castro’s phone then exchanged messages about when
¶79they planned to leave, and Perez’s phone sent a message to Bays’s
¶80phone saying, “She said she ready.” Perez’s phone and Bays’s phone
¶81exchanged messages agreeing to “go” sometime after 8:00 p.m. At
¶828:15 p.m., Bays’s phone sent a message saying, “I just want
¶83everything to go as plan.” Perez’s phone replied, “u sure he gone
¶84alone”; Bays’s phone responded, “Yea I’m sure and if he not who give
¶85a fu** we got this.”
¶86 On July 31, two days after the shooting, Castro’s phone sent
¶87Perez’s phone a text that said, “You know that boy car Key was still
¶88in my car, I had to destroy it cause I heard that those have trackin.”
¶89Later that day, Castro’s phone sent texts to Perez’s phone saying:
¶90“Don’t speak on nothing that happened”; “To no one”; “Don’t brag
¶91about it or nothing”; “Ima change everything inside my car and fix
¶92it”; “And report my tags stolen”; “Ima fix my car first”; and “Help me
¶93 3 The lead investigator testified that “asf” meant “as fu**.” 6 pay it.” On August 1, Castro’s phone sent Perez’s phone texts
¶94saying: “Change your number Geo”; “They can contact the company
¶95and get your number”; “Asap.” In addition, Perez’s phone contained
¶96a five-second-long video from July 30, 2018, which showed Perez and
¶97Bays pointing handguns toward the phone’s camera. 4
¶98 Castro testified at trial as follows. On July 28, Perez sent her
¶99a text message asking if she wanted to “hit a lick.” The next day,
¶100Perez and Bays called her and again asked her to “take them to rob
¶101someone.” She picked them up in her silver Nissan Sentra, and they
¶102told her to drive to the bowling alley on Lawrenceville Highway.
¶103Bays used Perez’s phone to call someone “to buy some marijuana,
¶104but, really, [Perez and Bays] were going to rob them.” When they
¶105arrived at the bowling alley around 11:00 p.m., a man, whom Castro
¶106identified at trial as Gardner, got in the passenger-side backseat of
¶107the Sentra; Perez was in the passenger seat, and Bays was in the
¶108 4 Perez’s cell phone, a disc containing all of the downloaded content from the phone, printouts showing the text messages between Perez’s phone and Castro’s and Bays’s phones, and the video were admitted into evidence. The lead investigator read the text messages aloud, and the video was played for the jury. 7 driver-side backseat. Gardner had marijuana in his lap, and Perez
¶109and Bays told him to weigh it. When Gardner asked for money,
¶110Perez pulled out a gun. Gardner pulled out his own gun and “pistol-
¶111whipp[ed]” Perez and Bays. 5 Perez then shot Gardner several times,
¶112got out of the car, and pulled Gardner out. 6 Perez and Bays told
¶113Castro to “drive off,” and she drove them to her apartment in
¶114Atlanta. Bays “had grabbed the marijuana[,] [a]nd then when [they]
¶115got to Atlanta, [they] split it.” They also cleaned the Sentra, because
¶116there was “a lot of blood” in it. She later found in the Sentra a “key
¶117fob” that belonged to Gardner, which she destroyed. She then
¶118instructed Perez to change his phone number.
¶119 Perez did not testify at trial. His defenses were that Castro
¶120 5 During an interview with investigators, Castro initially said that Gardner pulled out a gun first and “pistol-whipp[ed]” Perez, but she later admitted during the interview that Perez pulled out his gun first. In addition, Castro testified that she was charged with felony murder and armed robbery and could potentially receive sentences to serve life in prison for those crimes, that she had not made any plea deals in exchange for her testimony, but that she “wanted . . . to make a deal.”
¶121 6Castro testified that Bays also had a gun that night, but she was not asked whether he fired it.
¶122 8 was “the mastermind behind the[e] whole thing”; that he acted in
¶123self-defense; and, in the alternative, that the killing amounted only
¶124to voluntary manslaughter.
¶125 2. Perez contends first that the evidence presented at his trial
¶126was constitutionally insufficient to support his conviction for felony
¶127murder based on armed robbery.7 We disagree.
¶128 In evaluating the sufficiency of the evidence as a matter of
¶129constitutional due process, we view all of the evidence presented at
¶130trial in the light most favorable to the verdict and ask whether any
¶131rational juror could have found the defendant guilty beyond a
¶132reasonable doubt of the crime of which he was convicted. See
¶133Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
¶134(1979); Drennon v. State, 314 Ga. 854, 861 (880 SE2d 139) (2022).
¶135We leave to the jury “‘the resolution of conflicts or inconsistencies in
¶136the evidence, credibility of witnesses, and reasonable inferences to
¶137 7 Perez also contends that the evidence did not support his “conviction” for armed robbery. Perez was found guilty of armed robbery, but he was not convicted of or sentenced for that crime, so this contention is moot. See Rich v. State, 307 Ga. 757, 759 n.2 (838 SE2d 255) (2020). 9 be derived from the facts.’” Drennon, 314 Ga. at 861 (citation
¶138omitted).
¶139 To support Perez’s conviction for felony murder, the evidence
¶140presented at trial had to show that he proximately caused Gardner’s
¶141death, either directly or as a party to the crime, while in the
¶142commission of an armed robbery. See OCGA § 16-5-1 (c). See also
¶143OCGA § 16-2-20 (defining parties to a crime). “A person commits
¶144the offense of armed robbery when, with intent to commit theft,
¶145he . . . takes property of another from the person or the immediate
¶146presence of another by use of an offensive weapon[.]” OCGA § 16-8-
¶14741 (a). To convict a defendant of armed robbery, the State must
¶148prove beyond a reasonable doubt that the defendant’s use of the
¶149weapon occurred “prior to or contemporaneously with the taking.”
¶150Tyler v. State, 311 Ga. 727, 732 (859 SE2d 73) (2021) (citation and
¶151punctuation omitted).
¶152 The indictment in this case alleged that Perez, individually and
¶153as a party, committed armed robbery by using a handgun to take
¶154 10 marijuana from Gardner’s “immediate presence.”8 As Perez points
¶155out, the State was thus required to prove beyond a reasonable doubt
¶156that his use of the handgun occurred prior to or contemporaneously
¶157with the taking of the marijuana. Contrary to Perez’s arguments,
¶158however, the jury was authorized to conclude that the State made
¶159such a showing here.
¶160 Viewed in the light most favorable to the verdict, the evidence
¶161presented at trial—which included the text messages sent from
¶162Perez’s, Castro’s, and Bays’s phones and also Castro’s testimony—
¶163 8 The indictment also alleged that Perez committed armed robbery by taking Gardner’s cell phone. Perez argues that the State failed to present any evidence that he and his co-defendants took the cell phone, but we need not decide that issue, because as discussed below, the evidence was sufficient to prove that he took the marijuana. See, e.g., Avila v. State, 322 Ga. App. 225, 226-227 (744 SE2d 405) (2013) (holding that evidence that the appellant took a watch and bracelet from the victim was sufficient to support his conviction for armed robbery, even though the indictment alleged that the appellant took jewelry, cash, and a camera, and explaining that “[t]he State is not required to prove theft of all the items the indictment alleged were taken from the victim”) (emphasis in original); Booker v. State, 242 Ga. App. 80, 82 (528 SE2d 849) (2000) (concluding that evidence that the appellant took money from the victim was sufficient to support his armed-robbery conviction, even though the indictment alleged that he took money and cocaine, and explaining that “[a]n over-inclusive list of items alleged to have been taken in an indictment for armed robbery is not fatal to the validity of the conviction”). Cf. Davis v. State, 281 Ga. 871, 874 (644 SE2d 113) (2007) (“Where a single victim is robbed of multiple items in a single transaction, there is only one robbery.”). 11 showed that Perez, Castro, and Bays planned to rob Gardner (on the
¶164pretext of buying marijuana); when they arrived at the bowling
¶165alley, Gardner got in Castro’s Sentra, put the marijuana in his lap,
¶166and asked for money, and Perez then pulled out his gun and shot
¶167Gardner multiple times, killing him; Bays “grabbed the marijuana”;
¶168and Perez, Castro, and Bays fled to Atlanta, where they split the
¶169marijuana among them. This evidence authorized the jury to infer
¶170that Perez shared with Castro and Bays a common criminal intent
¶171to rob Gardner. See McIntyre v. State, 312 Ga. 531, 534 (863 SE2d
¶172166) (2021) (“‘[C]riminal intent may be inferred from presence,
¶173companionship, and conduct before, during, and after the offense.’”)
¶174(citation omitted). The jury also could have reasonably concluded
¶175that Perez used his gun prior to or contemporaneously with Bays’s
¶176taking of the marijuana, such that the State met its burden to prove
¶177that Bays took the marijuana during or soon after the fatal
¶178confrontation. The jury was therefore authorized to conclude that
¶179the State proved beyond a reasonable doubt that Perez was a party
¶180to the crime of armed robbery, which proximately caused Gardner’s
¶181 12 death. Accordingly, the evidence was constitutionally sufficient to
¶182support Perez’s conviction, at least as a party to the crime, for felony
¶183murder based on armed robbery. See, e.g., Tyler, 311 Ga. at 732
¶184(holding that the evidence, which showed that the appellant shot the
¶185victim before the taking of property, was constitutionally sufficient
¶186to support his conviction for armed robbery and explaining that “[a]
¶187defendant may be convicted of committing a robbery if he kills the
¶188victim first and then takes property in his possession”); Waller v.
¶189State, 311 Ga. 517, 522-523 (858 SE2d 683) (2021) (concluding that
¶190the evidence—which showed that the appellant and his co-
¶191defendants planned to rob the victim of a backpack containing cash
¶192and that after the victim was shot, he was no longer in possession of
¶193the backpack—was constitutionally sufficient to support the
¶194appellant’s conviction for felony murder based on armed robbery,
¶195and explaining that the jury was authorized to infer that the
¶196appellant used force against the victim contemporaneously with the
¶197taking of the backpack); Lumpkin v. State, 310 Ga. 139, 146 (849
¶198SE2d 175) (2020) (holding that the evidence was sufficient to
¶199 13 support the appellant’s armed-robbery conviction and explaining
¶200that there was no evidence that the taking of a laptop occurred
¶201before the assailants’ use of force against the victim).
¶202 3. Perez also contends that the trial court erred by denying
¶203three pretrial motions he filed seeking to suppress certain evidence.
¶204We address each of the motions in turn.
¶205 (a) Perez’s first motion sought to suppress evidence derived
¶206from the execution of two search warrants on the grounds that the
¶207warrants violated the Fourth Amendment to the United States
¶208Constitution because they lacked probable cause and sufficient
¶209particularity. See U.S. CONST. amend. IV (stating, in pertinent part,
¶210that “no Warrants shall issue, but upon probable cause, supported
¶211by Oath or affirmation, and particularly describing the place to be
¶212searched, and the persons or things to be seized”). The first warrant,
¶213which was issued on August 3, 2018, five days after the shooting,
¶214authorized investigators to obtain real-time geolocation information
¶215and real-time CSLI so that they could “track” the cell phone
¶216associated with the -1131 number until the investigation ended or
¶217 14 for 45 days, whichever occurred sooner. The warrant also
¶218authorized investigators to obtain phone records associated with the
¶219-1131 number for 45 days, beginning on August 3. The second
¶220search warrant, which was issued on August 20, 2018, authorized
¶221investigators to obtain phone records for the -1131 phone number
¶222from July 1 to 31, 2018, including, among other things, information
¶223regarding the date, time, and phone numbers associated with
¶224incoming and outgoing phone calls; incoming and outgoing text
¶225messages, without content; subscriber information; and historical
¶226CSLI. After a hearing, the trial court denied Perez’s motion.
¶227 In this Court, Perez maintains his arguments that the search
¶228warrants lacked probable cause and sufficient particularity. 9 We
¶229 9 United States Supreme Court precedent makes clear that the acquisition of Perez’s cell phone records, including historical CSLI, constituted a Fourth Amendment search for which the lead investigator was required to obtain a warrant. See Carpenter v. United States, ___ U.S. ___ (201 LE2d 507, 138 SCt 2206, 2220-2221 & n.3) (2018) (holding that the acquisition of seven days of historical CSLI constitutes a Fourth Amendment search for which the government generally must obtain a search warrant supported by probable cause); Riley v. California, 573 U.S. 373, 403 (134 SCt 2473, 189 LE2d 430) (2014) (holding that in order to search the digital information on a suspect’s cell phone incident to his arrest, investigators are generally required to obtain a warrant). But neither that Court, nor this one, has addressed whether the
¶230 15 address first Perez’s claim that the warrants lacked probable cause.
¶231 In determining whether probable cause exists to issue a search warrant, the magistrate’s task “is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” “The test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the factual and practical considerations of everyday life.” “On appellate review, our duty is to determine if the magistrate had a ‘substantial basis’ for concluding that probable cause existed to issue the search warrant.” The decision of a magistrate “to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court[,] and even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.” “The probable cause test requires only a fair probability—less than a certainty but more than a mere suspicion of possibility— which by no means is to be equated with proof by even so much as a preponderance of the evidence.”
¶232collection of real-time geolocation information or real-time CSLI qualifies as a Fourth Amendment search. See Carpenter, 138 SCt at 2220 (noting that the Court expressed no view on real-time CSLI). And we need not decide that issue today, because the lead investigator did obtain a warrant authorizing him to track the cell phone (and to obtain certain records), and as discussed below, the warrant was supported by probable cause and was sufficiently particular. We will therefore assume, without deciding, that the portion of the warrant permitting the tracking was required in the first place. See, e.g., United States v. Gibson, 996 F3d 451, 460 (7th Cir. 2021) (assuming without deciding that using real-time GPS location data to track a cell phone was a Fourth Amendment search); United States v. Sheckles, 996 F3d 330, 338 (6th Cir. 2021) (assuming without deciding that tracking a cell phone through real-time CSLI was a Fourth Amendment search). 16 Copeland v. State, 314 Ga. 44, 49 (875 SE2d 636) (2022) (citations
¶233omitted).
¶234 In the affidavits supporting the two search warrants at issue
¶235here, the lead investigator attested, in pertinent part, as follows.
¶236After the shooting, investigators found marijuana and cocaine,
¶237which were packaged for sale, in Gardner’s truck in the bowling
¶238alley parking lot, and two people who were at the bowling alley that
¶239night admitted that they had purchased drugs from Gardner.
¶240Gardner’s cell phone records showed that he received a call from the
¶241-1131 phone number at 10:14 p.m. He received another call from
¶242that number at 11:02 p.m., and surveillance video showed that at
¶24311:03 p.m., Gardner appeared to be on his cell phone as he left the
¶244bowling alley and walked to his truck in the parking lot. Gardner
¶245received another call from the -1131 number at 11:07 p.m. The
¶246surveillance video showed that a “sedan” pulled into the parking lot
¶247around that time and that Gardner got into the sedan. Several
¶248minutes later, the video showed Gardner fall out of the car and to
¶249the ground as the sedan sped away. The lead investigator stated
¶250 17 that, based on the events on the night of the shooting, there was
¶251reason to believe that the person using the -1131 number or an
¶252accomplice of that person called Gardner about a drug deal, luring
¶253him to the sedan, and that the person then shot and killed Gardner,
¶254or participated in the shooting as an accomplice in the crimes.
¶255 The facts outlined in the affidavits authorized the judge who
¶256issued the warrants 10 to infer that someone associated with the
¶257sedan used the -1131 phone number to call Gardner to communicate
¶258about purchasing drugs in the bowling alley parking lot, and that
¶259during the drug deal, the caller or one of his accomplices shot and
¶260killed Gardner. Given the totality of the circumstances set forth in
¶261the affidavits, the judge had a substantial basis for concluding that
¶262there was a fair probability that the real-time and historical location
¶263of the cell phone associated with the -1131 number and the records
¶264for that number would lead to relevant evidence with respect to the
¶265identities and whereabouts of the shooter and any accomplices, thus
¶266 10 We note that a Gwinnett County superior court judge issued the two search warrants at issue here; magistrate judges issued the warrants discussed in Divisions 3 (b) and (c) below. 18 facilitating their apprehension, as well as evidence of their location
¶267and communications with each other and Gardner around the time
¶268of the crimes. Accordingly, the judge had a substantial basis for
¶269concluding that probable cause existed to issue the search warrants.
¶270See, e.g., Copeland, 314 Ga. at 49-51 (holding that probable cause
¶271supported a warrant to obtain the appellant’s cell phone records,
¶272because the affidavit set forth facts showing that another suspect,
¶273who investigators believed was “on the run,” called the appellant
¶274before and after the shootings and that her phone pinged near the
¶275crime scene and then became stationary near the appellant’s
¶276address; these facts authorized the magistrate to infer that the
¶277appellant’s cell phone records would contain information about his
¶278communications with the suspect near the time of the crimes);
¶279United States v. Gibson, 996 F3d 451, 460-462 (7th Cir. 2021)
¶280(holding that court orders that met the requirements for a search
¶281warrant and authorized investigators to use real-time GPS location
¶282data to track a cell phone used by the appellants were supported by
¶283probable cause, because the affidavits set forth facts indicating that
¶284 19 the phone was used to conduct drug deals, investigators did not
¶285know who the users of the phone were, and tracking the phone would
¶286facilitate the apprehension of the drug traffickers); United States v.
¶287Sheckles, 996 F3d 330, 338-339 (6th Cir. 2021) (determining that a
¶288warrant authorizing investigators to track a cell phone number
¶289(later determined to belong to the appellant) through real-time CSLI
¶290was supported by probable cause, because the affidavit underlying
¶291the warrant set forth facts showing that the phone number belonged
¶292to a drug distributor, whose identity was not yet known, and the
¶293phone’s location would therefore “likely yield useful evidence of
¶294criminal activity, including the distributor’s identity”); United
¶295States v. Bass, 785 F3d 1043, 1049 (6th Cir. 2015) (holding that the
¶296magistrate properly concluded that there was probable cause to
¶297support a warrant to search the appellant’s cell phone, because the
¶298affidavit underlying the warrant “showed a fair probability that
¶299evidence of fraud—including contacts between co-conspirators—
¶300would be found within the cell phone”).
¶301 We now turn to Perez’s claim regarding the Fourth
¶302 20 Amendment’s particularity requirement. As an initial matter, it is
¶303unclear whether Perez challenges both search warrants or only the
¶304second warrant, which authorized investigators to obtain phone
¶305records for the -1131 phone number from July 1 to 31, 2018, on this
¶306ground. He appears to assert that both warrants authorized the
¶307disclosure of his cell phone’s real-time tracking information and his
¶308cell phone records for an overly broad period of time, and were
¶309therefore insufficiently particular, but he also seems to make
¶310arguments pertaining only to the second warrant’s date range of
¶311July 1 to 31, 2018. We will assume, however, that Perez’s claim here
¶312relates to both warrants, and that he properly preserved this claim
¶313for ordinary appellate review, because it fails in any event.
¶314 The Fourth Amendment to the United States Constitution “require[s] that a search warrant particularly describe the article or articles sought.” In addition to requiring that officers have enough guidance to locate and seize only those items the warrant authorizes them to seize, th[e] particularity requirement also prevents general searches—that “general, exploratory rummaging in a person’s belongings” by the government that has been rejected since the founding as a violation of “fundamental rights.” The particularity requirement is “applied with a practical margin of
¶315 21 flexibility, depending on the type of property to be seized, and a description of property will be acceptable if it is as specific as the circumstances and nature of activity under investigation permit.”
¶316State v. Wilson, 315 Ga. 613, 614-615 (884 SE2d 298) (2023)
¶317(citations omitted).
¶318 Perez cites no authority to support his argument that the date
¶319ranges in the two warrants were overbroad, and as explained below,
¶320we conclude that they were sufficiently particular under the
¶321circumstances. The lead investigator obtained the first search
¶322warrant on August 3, 2018, five days after the shooting; he obtained
¶323the second warrant on August 20, 2018, about three weeks after the
¶324shooting. As discussed above in relation to Perez’s probable-cause
¶325claim, at the time the warrants were issued, the facts of the
¶326investigation, as set forth in the underlying affidavits, indicated that
¶327on July 29, 2018, the shooter or “an accomplice to the shooter” used
¶328the -1131 phone number to call Gardner to communicate about
¶329purchasing drugs in the bowling alley parking lot; arrived at the
¶330parking lot in a sedan; met with Gardner; and then shot and killed
¶331 22 him. At that time, investigators had not yet located the sedan,
¶332identified or apprehended any of the assailants, determined their
¶333relationship to or prior contact with Gardner, or uncovered their
¶334motive for killing him. Nor did investigators know the exact time
¶335period during which the unidentified assailants communicated with
¶336each other or Gardner.
¶337 Given these circumstances, the date ranges set forth in the two
¶338search warrants—from August 3 to September 17 (45 days, or with
¶339respect to the tracking information, sooner if the investigation ended
¶340before September 17) in the first warrant and July 1 to 31 (30 days)
¶341in the second warrant—were sufficiently limited, thus preventing
¶342an impermissible general search of data. See id. at 614. Because,
¶343using a practical margin of flexibility, the date ranges in the search
¶344warrants were as specific as the circumstances and nature of the
¶345activity under investigation permitted, the warrants were not
¶346overbroad and insufficiently particular in this respect. See id. at
¶347615. For these reasons, the trial court did not err by denying Perez’s
¶348motion to suppress evidence obtained from the two search warrants
¶349 23 discussed above.
¶350 (b) Perez also challenges the trial court’s denial of his second
¶351motion, which sought to suppress evidence garnered from the
¶352execution of a warrant to search his house on South Elizabeth Place.
¶353The warrant, which was issued on September 24, 2018, about two
¶354months after the shooting, authorized investigators to search for and
¶355seize “[a]ll firearms, all ammunition, all cellular telephones,
¶356keys/key fob to the victim’s Nissan Titan, [and] clothing containing
¶357blood sp[]atter.” During the search, investigators seized, among
¶358other things, Perez’s driver’s license and his cell phone, which, as
¶359discussed above, was associated with the -1131 and -9983 phone
¶360numbers and yielded incriminating evidence. Perez argues that the
¶361search warrant was not based on probable cause. He also seems to
¶362assert that the warrant was overbroad because it authorized
¶363investigators to search for car keys and a driver’s license. These
¶364claims are meritless.
¶365 As to probable cause, the affidavit in support of the search
¶366warrant set forth facts that were substantially similar to the facts
¶367 24 presented in the affidavits underlying the two search warrants
¶368discussed in Division 3 (a) above, and added the following. The
¶369phone records for the -1131 phone number showed that the number
¶370was associated with an address on South Elizabeth Place, and the
¶371lead investigator learned that the -1131 number was changed on
¶372August 2, 2018, four days after the shooting; he also learned through
¶373the Georgia Crime Information Center that the -1131 number was
¶374used by Perez, who lived at the address on South Elizabeth Place.
¶375The investigator interviewed a friend of Bays, who said that Bays
¶376had admitted that he and another man shot someone during a
¶377marijuana deal in Lilburn. The investigator then interviewed Bays,
¶378who had turned himself in to investigators; Bays admitted that he
¶379and Perez shot Gardner in the car in the parking lot of the bowling
¶380alley. The lead investigator also attested that based on his
¶381experience and training, the close-range shooting in the car likely
¶382would have resulted in the transfer of Gardner’s blood to Perez’s
¶383clothing.
¶384 These facts in the affidavit showed that Perez (or an
¶385 25 accomplice) used his cell phone to contact Gardner shortly before
¶386Perez shot and killed Gardner. The affidavit also connected Perez
¶387and the cell phone to the house on South Elizabeth Place. Given all
¶388of these circumstances, the magistrate was authorized to conclude
¶389that there was a fair probability that evidence related to the
¶390shooting would be found at the house. See Copeland, 314 Ga. at 49.
¶391 Perez argues that the warrant lacked probable cause because
¶392the affidavit failed to provide the magistrate with a substantial basis
¶393for crediting the statements made by Bays and Bays’s friend. But
¶394the magistrate was authorized to conclude that the facts set forth in
¶395the affidavit that were obtained during the interview of the friend
¶396were corroborated by Bays, who had turned himself in to law
¶397enforcement officials and implicated himself (and Perez) in the
¶398shooting. And the magistrate could have reasonably determined
¶399that other information in the affidavit—including information
¶400obtained from the crime scene, the surveillance video, and Gardner’s
¶401phone records—corroborated Bays’s account. See, e.g., Willis v.
¶402State, 315 Ga. 19, 30 (880 SE2d 158) (2022) (holding that trial
¶403 26 counsel’s failure to file a motion to suppress on the ground that a
¶404search warrant was not supported by probable cause did not
¶405constitute deficient performance, because the affidavit showed that
¶406the appellant’s co-defendant gave a statement to police admitting
¶407that he and the appellant were involved in shooting the victim; the
¶408statement was “against [the co-defendant’s] penal interest and
¶409based on his personal knowledge”; and that was enough in itself to
¶410provide the magistrate with a substantial basis for concluding that
¶411probable cause existed); Graddy v. State, 277 Ga. 765, 766 (596 SE2d
¶412109) (2004) (explaining that “[w]hen a named informant makes a
¶413declaration against penal interest and based on personal
¶414observation, that in itself provides a substantial basis for the
¶415magistrate to credit that statement”) (citation, punctuation, and
¶416emphasis omitted). See also Illinois v. Gates, 462 U.S. 213, 244-245
¶417(103 SCt 2317, 76 LE2d 527) (1983) (“It is enough, for purposes of
¶418assessing probable cause, that ‘corroboration through other sources
¶419of information reduced the chances of a reckless or prevaricating
¶420tale,’ thus providing ‘a substantial basis for crediting the hearsay.’”)
¶421 27 (citation omitted).
¶422 In sum, given the totality of the circumstances, the magistrate
¶423had a substantial basis for determining that probable cause
¶424supported the search warrant. See, e.g., Moon v. State, 312 Ga. 31,
¶42557-59 (860 SE2d 519) (2021) (concluding that probable cause
¶426supported the issuance of a warrant authorizing a search of the
¶427appellant’s house because the underlying affidavit said that a
¶428surveillance video showed the car used in the shooting, the owner of
¶429the car told investigators that she loaned it to the appellant, and
¶430phone records showed that his cell phone was near the crime scene
¶431around the time of the shooting, and rejecting the appellant’s
¶432argument that the owner of the car was unreliable); Glenn v. State,
¶433302 Ga. 276, 281-282 (806 SE2d 564) (2017) (holding that the
¶434magistrate was authorized to conclude that probable cause existed
¶435for the issuance of a warrant to search the appellant’s residence,
¶436because the affidavit supporting the warrant recounted that the
¶437appellant was identified through surveillance video of the crimes
¶438and another person who was involved in the crimes had identified
¶439 28 the appellant as the shooter).11
¶440 Perez also briefly argues that the search warrant was
¶441overbroad because it was not probable that two of the items listed in
¶442the warrant—a driver’s license and the keys to Gardner’s Nissan
¶443Titan—were connected to the crimes or that they would be found in
¶444the house on South Elizabeth Place. Contrary to Perez’s assertion,
¶445the warrant did not authorize investigators to search for a driver’s
¶446license, so his contention on this point fails. 12 And with respect to
¶447 11 In support of his probable-cause claim, Perez relies on United States v. Griffith, which held that a warrant authorizing a search of the appellant’s apartment for cell phones, among other things, was not supported by probable cause, because the affidavit underlying the warrant failed to set forth any facts showing that the appellant owned a cell phone, that any cell phones would be found in the apartment, or that they would contain evidence related to the crimes, which occurred more than a year before the search. See 867 F3d 1265, 1268-1275 (D.C. Cir. 2017). But the circumstances in this case are dissimilar to those in Griffith. Here, the affidavit set forth facts indicating that Perez owned the cell phone associated with the number that contacted Gardner shortly before Perez shot him; that Perez and his phone were linked to the house on South Elizabeth Place; and that the phone would contain evidence related to the crimes, which were committed only two months before the search.
¶448 12 Perez does not contend that the investigators’ seizure of his driver’s license exceeded the scope of the search warrant, so we do not address that issue. See, e.g., George v. State, 312 Ga. 801, 804-805 (865 SE2d 127) (2021) (discussing the appellant’s claim that investigators seized evidence that was beyond the scope of the search warrant and explaining that the plain-view exception to the warrant requirement may apply in such circumstances). 29 the car keys, the affidavit underlying the warrant attested that
¶449investigators did not locate “the keys and key fob to [Gardner’s]
¶450Nissan Titan truck[,] which he drove to the bowling alley.” The
¶451magistrate could reasonably infer from this information that Perez
¶452took Gardner’s keys and key fob at the time of the shooting and that
¶453there was a fair probability that those items would be found at
¶454Perez’s house. See, e.g., id. at 282 (holding that the magistrate
¶455properly concluded that it was fairly probable that the items listed
¶456in the search warrant, which included personal effects of the victim
¶457that were not recovered at the crime scene, would be found at the
¶458apartment where the appellant, a suspect in the crime, was residing,
¶459because the fact that the appellant lived at the apartment “meant
¶460that there was at least a ‘fair probability’ that items related to the
¶461crime would be found there”). Accordingly, the trial court did not
¶462err by denying Perez’s motion to suppress evidence obtained from
¶463the search of his house.
¶464 (c) Perez also contends that the trial court erred by denying
¶465his third motion, which sought to suppress evidence derived from a
¶466 30 warrant that permitted investigators to search his cell phone. The
¶467warrant, which was issued on September 25, 2018, the day after
¶468Perez’s house was searched, authorized the search and seizure of
¶469“call logs, text messages, photos, videos, social media content
¶470(Snapchat, Instagram, Facebook etc.) and any other application or
¶471data that could have been used to communicate with the victim or
¶472other suspects.” After the warrant was issued, investigators
¶473downloaded from Perez’s cell phone the data authorized by the
¶474warrant, which produced incriminating evidence that was admitted
¶475at trial. Perez argues that the trial court should have suppressed
¶476this evidence, because the warrant was not supported by probable
¶477cause and was overbroad, in violation of the particularity
¶478requirement.
¶479 With respect to probable cause, the facts set forth in the
¶480affidavit supporting the warrant were substantially similar to the
¶481facts presented in the affidavits described in Divisions 3 (a) and (b)
¶482above, except there was no mention of the information obtained from
¶483Bays and Bays’s friend. The affidavit also added that the -1131
¶484 31 phone number was changed to the -9983 number on August 2, 2018;
¶485the CSLI for the phone showed that it was near the bowling alley at
¶486the time of the shooting; Perez was arrested on September 24; and
¶487investigators seized his cell phone, which investigators confirmed
¶488was associated with the -1131 and -9983 phone numbers.
¶489 Based on the facts in the affidavit, the magistrate could have
¶490reasonably concluded that Perez or one of his accomplices used
¶491Perez’s cell phone to call Gardner about purchasing drugs in the
¶492bowling alley parking lot; that Perez (and his accomplices) were in
¶493the sedan that Gardner entered just before he was shot; and that
¶494Perez (or an accomplice) was the shooter. Given the totality of the
¶495circumstances presented in the affidavit, the magistrate had a
¶496substantial basis for concluding that there was a fair probability
¶497that the cell phone would contain evidence of the crimes. Thus, the
¶498magistrate had a substantial basis for determining that probable
¶499cause existed to issue the search warrant. See Copeland, 314 Ga. at
¶50049-51. See also Glispie v. State, 300 Ga. 128, 133 (793 SE2d 381)
¶501(2016) (holding that the magistrate had a substantial basis for
¶502 32 concluding that probable cause existed to issue a search warrant for
¶503the appellant’s cell phone because the affidavit underlying the
¶504warrant said that police had found drugs, cash, and two cell phones
¶505in the appellant’s possession as part of a lawful search incident to
¶506arrest, which authorized the magistrate to infer that the cell phones
¶507were used as communicative devices with third parties for drug
¶508deals).
¶509 Perez also contends that the warrant was overbroad because it
¶510authorized the search and seizure of text messages, social media,
¶511photos, and videos, without showing how this data was connected to
¶512the crimes and without any temporal limitation. As explained
¶513below, we conclude that the warrant was sufficiently particular.
¶514 To begin, the warrant did not simply provide an unbounded
¶515description authorizing the search and seizure of any and all data
¶516on the cell phone, without linking that data to the crimes at issue.
¶517Rather, the language of the warrant, in context, makes clear that it
¶518authorized the search and seizure of only those classes of
¶519applications and data that could have been used to communicate
¶520 33 with the victim or other suspects.
¶521 Specifically, after stating that there was probable cause to
¶522believe that the crimes of felony murder and aggravated assault had
¶523been committed, the warrant listed certain classes of applications
¶524and data to be searched for and seized: “call logs, text messages,
¶525photos, videos, [and] social media content (Snapchat, Instagram,
¶526Facebook etc.).” This series of items was followed by the phrase “and
¶527any other application or data that could have been used to
¶528communicate with the victim or other suspects.” The language “and
¶529any other application or data,” read in proper context with the rest
¶530of the sentence, which contains a lengthy list of particular types of
¶531applications and data, indicates that the phrase “and any other
¶532application or data that could have been used to communicate with
¶533the victim or other suspects” modifies the entire list of items
¶534preceding it. In other words, the warrant authorized the search of
¶535call logs that could have shown communications with the victim or
¶536other suspects, text messages that could have shown
¶537communications with the victim or other suspects, and so on. See
¶538 34 Scott v. State, 299 Ga. 568, 572-573 (788 SE2d 468) (2016)
¶539(explaining, in the context of construing the meaning of a statute,
¶540that “a qualifying phrase appearing at the end of a series should be
¶541read to apply to all items in the series ‘when such an application
¶542would represent a natural construction’”) (citation omitted);
¶543Merriam-Webster Dictionary, https://www.merriam-
¶544webster.com/dictionary (defining “and” in this context as “a function
¶545word to indicate connection or addition especially of items within the
¶546same class or type—used to join sentence elements of the same
¶547grammatical rank or function”; and defining “any other” in this
¶548context as “in addition to the . . . thing just mentioned”). See also
¶549ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
¶550INTERPRETATION OF LEGAL TEXTS 147 (2012) (explaining that
¶551“[w]hen there is a straightforward, parallel construction that
¶552involves all nouns or verbs in a series, a . . . postpositive modifier
¶553normally applies to the entire series”).
¶554 Thus, reading the warrant as a whole, the phrase “and any
¶555other application or data that could have been used to communicate
¶556 35 with the victim or other suspects” is most reasonably understood to
¶557limit all of the listed classes of applications and data to applications
¶558and data that could have been used to communicate with the victim
¶559or other suspects. See Blach v. Diaz-Verson, 303 Ga. 63, 64-66 (810
¶560SE2d 129) (2018) (construing the phrase “‘or other organization held
¶561out to the public as a place of deposit of funds or medium of savings
¶562or collective investment’” at the end of a list of kinds of banks, credit
¶563unions, associations, companies, and funds in a statute defining
¶564“financial institution” as “describ[ing] generally all the entities” in
¶565the preceding list and explaining that the word “or” may be used as
¶566a reiterative term); Alpine Glass, Inc. v. Illinois Farmers Insurance
¶567Co., 643 F3d 659, 665 (8th Cir. 2011) (concluding that the phrase “‘or
¶568any other tangible thing or item of monetary value,’” which followed
¶569a list of prohibited items in a statute, meant that those items
¶570constituted “‘tangible thing[s] or item[s] of monetary value’”). 13
¶571 13Several of us recently have expressed concerns about whether catch-all phrases (or “residual clauses”) in a search warrant—like the phrase “‘any other evidence of the crime of murder’” after a list of items to be searched for and seized—can limit the list of items preceding it and thus transform an
¶572 36 And contrary to Perez’s argument, the breadth of the search
¶573was supported by the facts set forth in the affidavit, which indicated
¶574that Perez (and, potentially, any accomplices) used his cell phone to
¶575communicate with Gardner about arranging a drug deal in the
¶576bowling alley parking lot, where Perez or an accomplice shot and
¶577killed him. Perez argues that the affidavit stated only that he or an
¶578accomplice used the cell phone to call Gardner, with no mention of
¶579contacting him through text messages, photos, videos, or social
¶580otherwise general warrant into a sufficiently particular one. Wilson, 315 Ga. at 617-620 (Peterson, P.J., concurring, joined by Boggs, C.J., and Warren, Bethel, Colvin, and Pinson, JJ.) (suggesting that a catch-all phrase in the description of things to be seized does not necessarily invalidate an otherwise particular warrant, but that this Court’s precedent suggesting the inverse— that a warrant lacking in particularity can be saved by a catch-all phrase— may be incorrect) (citation omitted). But the phrase “and any other application or data that could have been used to communicate with the victim or other suspects” at the end of the list of applications and data described here does not implicate such concerns. As discussed in our analysis above, read in context and in its most natural and reasonable way, that phrase modifies the rest of the list and confines the types of listed applications and data to a specific category: applications and data that could have been used to communicate with the victim or other suspects. Thus, in contrast to a catch-all phrase like “any other evidence of the crime of murder”—which expands a list of certain items to be searched for and seized to encompass any other sort of evidence of the crimes at issue—the phrase here restricts the applications and data to be searched for and seized to applications and data that could have been used to communicate with the victim or other suspects. See id. at 620 (explaining that “the words of [a] warrant matter”). 37 media. But given all of the facts set forth in the affidavit, the
¶581magistrate was authorized to make a practical, common-sense
¶582determination that Perez, and any other assailants, could have
¶583communicated with Gardner and with each other not only through
¶584phone calls, but also through text messages, photos, videos, or social
¶585media content, and that there was a fair probability that evidence
¶586related to the crimes would be found within that sort of data on
¶587Perez’s cell phone. See United States v. Reichling, 781 F3d 883, 887
¶588(7th Cir. 2015) (explaining, in the context of analyzing whether a
¶589magistrate properly concluded that probable cause supported a
¶590warrant to search his residence for digital and non-digital storage
¶591devices, that “‘a judge is given license to draw reasonable inferences
¶592concerning where the evidence referred to in the affidavit is likely to
¶593be kept, taking into account the nature of the evidence and the
¶594offense,’” and that the probable-cause inquiry must be grounded in
¶595both an understanding of criminal behavior and of modern
¶596technology) (citation omitted). See also Bass, 785 F3d at 1049-1050
¶597(holding that a warrant authorizing a search of the appellant’s cell
¶598 38 phone for “any records of communication, indicia of use, ownership,
¶599or possession, including electronic calendars, address books, e-mails,
¶600and chat logs” was sufficiently particular, because the warrant
¶601sought evidence of fraudulent conduct related to the charges of wire
¶602fraud, credit fraud, and identity theft; the affidavit set forth a
¶603substantial basis to believe such evidence existed on the cell phone;
¶604and officers could not have known where such evidence was located
¶605on the phone or in what format).
¶606 Perez also complains that the warrant failed to expressly
¶607confine the data to be searched for and seized to a specific date
¶608range. But he cites no authority in support of that argument. And
¶609the facts set forth in the affidavit indicated that at the time the
¶610warrant was issued, investigators were still determining whether
¶611additional suspects, whose identities and whereabouts were
¶612unknown, were involved in the shooting. Under these
¶613circumstances, we cannot say that the warrant was impermissibly
¶614general on the basis that it did not set forth a specific time frame.
¶615For these reasons, Perez’s claim that the search warrant was
¶616 39 overbroad, and thus insufficiently particular, fails. Compare
¶617Wilson, 315 Ga. at 613-616 (holding that a warrant that authorized
¶618investigators to search for and seize from the appellant’s cell phone
¶619“any and all stored electronic information, including but not limited
¶620to; user account information, stored phone information, images, text
¶621messages, videos, documents, e-mails, internet activity, call logs,
¶622contact information, phone information, or any deleted data” was
¶623not sufficiently particular, because the warrant failed to limit the
¶624search and seizure to evidence connected to the crimes at issue).
¶625 Consequently, the trial court did not err by denying Perez’s
¶626motion to suppress evidence garnered from the search of his cell
¶627phone. Thus, Perez’s claims regarding each of the warrants he
¶628challenges fail.
¶629 4. As discussed in footnote 1 above, Perez was found guilty of,
¶630among other crimes, voluntary manslaughter as a lesser offense of
¶631malice murder and felony murder based on armed robbery. The trial
¶632court ultimately vacated the voluntary-manslaughter guilty verdict
¶633and sentenced Perez for the felony-murder count. Perez contends
¶634 40 that under the modified merger rule set forth in Edge v. State, 261
¶635Ga. 865 (414 SE2d 463) (1992), the trial court should have sentenced
¶636him for voluntary manslaughter rather than felony murder based
¶637on armed robbery. 14 We disagree.
¶638 In rejecting a similar claim in Smith v. State, 272 Ga. 874 (536
¶639SE2d 514) (2000), we explained that
¶640 [i]n Edge, this court adopted a modified merger rule, holding that, when a single aggravated assault is the basis for felony murder and voluntary manslaughter charges, the defendant cannot be convicted and sentenced for felony murder if the jury also finds that the assault is mitigated by provocation and passion and convicts the defendant of voluntary manslaughter. We adopted such a rule because “[t]o hold otherwise would eliminate voluntary manslaughter as a separate form of homicide since, in that event, every voluntary manslaughter would also be a felony murder.” In Edge, we noted that the problem we were addressing “does not exist if the underlying felony is independent of the killing itself, such as burglary, robbery, or even an assault that is directed against someone other than the homicide victim.”
¶641Id. at 879 (footnotes containing citations omitted). Consequently,
¶642 14 Perez also contends that he should have been sentenced for voluntary manslaughter rather than felony murder based on aggravated assault. Although the jury found Perez guilty of felony murder based on aggravated assault, he was not convicted of or sentenced for that crime, so his claim regarding it is moot. See Williams v. State, 313 Ga. 325, 332 (869 SE2d 389) (2022). 41 we have held that “the modified merger rule does not apply when
¶643the underlying felony, such as armed robbery, is independent of the
¶644killing itself.” Id. at 879-880. See also Grimes v. State, 293 Ga. 559,
¶645561 (748 SE2d 441) (2013) (reiterating this principle and explaining
¶646that “we generally do not apply the Edge modified merger rule ‘to
¶647any felony murder conviction in which the underlying felony was not
¶648the aggravated assault of the murder victim’”) (citation omitted).
¶649 Here, like in Smith, Perez’s felony-murder conviction was
¶650based on an armed robbery that was “independent of the killing
¶651itself.” 272 Ga. at 880. Although Perez’s act of using a handgun to
¶652take marijuana from Gardner proximately caused his death, and
¶653thus supported his conviction for felony murder, the evidence
¶654presented suggested that the act was not integral to the killing.
¶655Thus, Edge’s modified merger rule does not apply, and Perez was
¶656properly convicted of and sentenced for felony murder. See id.;
¶657Grimes, 293 Ga. at 561-562 (rejecting the appellant’s claim that he
¶658should have been sentenced for voluntary manslaughter instead of
¶659felony murder based on attempted armed robbery under the rule in
¶660 42 Edge, because the attempted armed robbery was independent of the
¶661killing itself). Compare Sanders v. State, 281 Ga. 36, 37-38 (635
¶662SE2d 772) (2006) (holding that the rule in Edge applied where the
¶663same act of setting the victim on fire resulted in the commission of
¶664all three of the felonies underlying three counts of felony murder—
¶665aggravated assault, aggravated battery, and arson in the first
¶666degree—and caused the death of the victim, so the felonies were
¶667“integral to the killing”).
¶668 And to the extent Perez asserts that the jury’s guilty verdicts
¶669of voluntary manslaughter and felony murder based on armed
¶670robbery were mutually exclusive, we reject that argument, just as
¶671we rejected a similar argument in Smith. See 272 Ga. at 880
¶672(holding that “[b]ecause the intent relevant to the conviction for
¶673felony murder was the underlying intent for armed robbery and
¶674because intent to kill, as well as mitigating factors such as
¶675provocation and passion, are irrelevant to that intent, the jury’s
¶676verdict of felony murder does not constitute a finding that [the
¶677appellant] did not act with provocation and passion in assaulting the
¶678 43 victim and does not conflict with the jury’s verdict of voluntary
¶679manslaughter”).
¶680 Judgment affirmed. All the Justices concur.
¶681 44