Barber v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: October 4, 2022
S22A0770. BARBER v. THE STATE.
ELLINGTON, Justice.
Appellant Rashad Barber appeals his convictions for malice
murder and other crimes arising out of the June 13, 2014 shooting
death of Darius Bottoms. 1 On appeal, Barber contends that the
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
because the only evidence inculpating him in this crime was
presented through the testimony of an alleged accomplice, that the
trial judge erred by failing to recuse himself after making
statements revealing a personal bias, and that the trial court erred
when it resentenced him on the charges of participation in criminal
street gang activity and possession of a firearm. For the reasons that
follow, we affirm Barber’s convictions and sentences.
Viewed in the light most favorable to the verdicts, the evidence
shows that in the days leading up to the June 13, 2014 shooting that
consecutive 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
ongoing dispute related, at least in part, to the recent decision by
one gang member, Kareasha Washington, to leave the “Billy Bad
Asses Bloods” gang (the “Billy” gang) and join the “Neighborhood
Bloods/Rolling Twenties Blood” gang (the “NHB” gang). Washington
left the Billy gang because some members thought she was involved
in the death of another member of the Billy gang. Barber and his co-
defendants, David Wallace and Ryan Bowdery, were members of the
NHB gang.
Pertinent to this appeal, the evidence showed that on June 6,
2014, a blue Acura was stolen four blocks from the area where
Bottoms was shot. Although it was not established who stole the
blue Acura, Washington admitted she and Wallace drove around in
the stolen Acura for several days after it was taken. On June 9, 2014,
a 2014, beige, four-door Hyundai Elantra belonging to James
Terrell, a friend of Barber’s step-father, Jasen Williams, was stolen
from in front of Williams’s home, where Barber lived until just a few
weeks before Terrell’s Hyundai was stolen. Several hours later,
3
shots were fired into a boarding house located on Sells Avenue, an
area known to be part of the territory of the Billy gang. Shots were
fired at the same boarding house two nights later, on June 12, 2014,
at 4:20 a.m. Police, on this occasion, were able to recover three 9mm
shell casings from outside the boarding house.
On June 12, 2014, at about 6:20 p.m., Barber, Washington,
Wallace, and a fourth person drove in the stolen Acura to the
Arrowhead Pawn Shop in Clayton County. Video surveillance from
the pawn shop shows Barber, Washington, and Wallace inside the
pawn shop looking at guns while another shopper, Abert Moss, and
her friend, Nashunta Thomas, did the same. Barber is seen on the
video wearing jeans and a white tank top. The video also shows
Barber, Washington, and Wallace leaving the pawn shop, followed
shortly thereafter by Thomas and Moss, who had purchased a 9mm
Jimenez handgun. As Thomas sat in a car in the pawn shop parking
lot with the gun Moss had just purchased, Wallace stuck a different
gun in Thomas’s face and demanded the newly purchased 9mm
handgun. Wallace then ran back to the blue Acura and fled with
4
Barber, Washington, and the other person.
Approximately five hours later, at 11:30 p.m. on June 12, 2014,
Barber’s step-father, Williams, was attacked outside his home and
shot multiple times. Selena Barber, Rashad Barber’s mother,
accompanied Williams to the hospital, but she did not tell Barber
about the shooting because she was afraid of what Barber might do.
She and Williams reported the shooting to the police, however,
believing that it might be related to Barber’s dispute with the Billy
gang.
Within hours of Williams’s shooting, Barber learned that
Williams had been shot, and he, Wallace, Washington, and Bowdery
got together. The four drove around in the blue Acura with
Washington in the driver’s seat, Wallace in the front passenger seat,
and Bowdery and Barber, who Washington stated was carrying both
a revolver and a 9mm handgun, sitting in the rear seats. According
to Washington, she then made plans to meet with a friend who was
a member of the Billy gang near Legacy Drive and Sells Avenue in
Fulton County. Washington, Barber, Wallace, and Bowdery arrived
5
early at the agreed upon location, so Barber and Bowdery got out of
the car. Washington and Wallace remained in the car until, a few
minutes later, she heard Barber yell, “There go them Billies,” and
she saw Barber and Bowdery run around the corner at the
intersection of Legacy Drive and Sells Avenue. Washington then
heard several gunshots, causing her to get out of the car and run
away. Barber and Bowdery ran back to the stolen Acura, and
Wallace, who was, by now, in the driver’s seat, followed Washington
and told her to get in the car. As they drove away, Washington heard
Barber keep saying, “That was the Billy, that was the Billy who shot
up my Mama’s house.”
Theda Hall, who lived in a second floor apartment near the
corner of Legacy Drive and Sells Avenue, stepped onto her balcony
in the early morning hours of June 13, 2014, and saw who she
described as two males sitting in the front seat of a vehicle parked
near the corner of Legacy Drive and Sells Avenue. She saw another
male standing outside the vehicle on the sidewalk, and a fourth male
standing outside the vehicle in the shadows. According to Hall, the
6
male standing near the vehicle, the one she referred to as the
“shooter,” had a gun and was wearing jeans and a white shirt with
thin straps across the shoulders. She described the shooter as being
about 25-30 years old and approximately six feet tall with a
muscular build, medium to medium-dark brown skin, “a little short
haircut,” and possibly a mark or tattoo on his neck. Hall saw the
shooter walk up to the corner of Legacy Drive and Sells Avenue
while the car pulled forward, then heard some yelling, followed by
several gunshots. Hall stated the person standing in the shadows
also had a gun and was talking to the shooter as he stood in the
intersection.
Bottoms and Jared Robinson had been visiting a friend in an
apartment near the intersection of Legacy Drive and Sells Avenue
in the early morning hours of June 13, 2014. They had driven to the
friend’s apartment in Bottoms’s new silver four-door Hyundai
Elantra, a gift to Bottoms from his grandfather. At approximately
4:00 a.m. on June 13, Bottoms and Robinson left the friend’s
apartment and walked to Bottoms’s vehicle, which they had parked
7
down the hill from the intersection of Legacy Drive and Sells
Avenue. Robinson told police that as he and Bottoms pulled out of
the parking space onto Legacy Drive facing toward the top of the
hill, they saw a male coming down the hill toward them, yelling, and
pointing aggressively. The person coming toward them then started
shooting at them at a rapid pace, ultimately striking Bottoms
through the windshield with a single gunshot from a 9mm handgun.
Bottoms died at the scene from a gunshot wound to the head.
Robinson was able to get away but noticed from a distance that
someone was shooting from near the stop sign at the top of Legacy
Drive. Seventeen shells casing were ultimately recovered from the
crime scene; eleven 9mm Luger shell casings were discovered near
the intersection of Legacy Drive and Sells Avenue, and another six
shell casings from a different 9mm handgun were recovered from
farther down the hill.
During questioning by police, Washington admitted that she
was driving the stolen Acura on the night Bottoms was killed, and
she identified Barber and Bowdery as the males who shot at
8
Bottoms and Robinson. She also identified Wallace as the male who
stayed at the car during the shooting and drove the Acura as all four
fled after the shooting.
Video surveillance showed a car matching the stolen Acura’s
description speeding on Sells Avenue moments after the shooting.
Cell phone evidence from Washington and Wallace’s phones
indicated they were together on June 13, 2014, in the area near
Legacy Drive between 3:42 a.m. and 3:59 a.m., just before the
shooting occurred, and in the Cleveland Avenue area of Atlanta
shortly after the shooting, and that Washington called Barber at
7:00 a.m. the morning of the shooting. Cell phone records from
phones linked to Washington, Barber, and Wallace also showed a
significant amount of communication between them leading up to
the robbery in the pawn shop parking lot and the shooting of
Bottoms and between Washington, Barber, Wallace, and Bowdery
throughout the day of the shooting.
A week after the shooting, police arrested Wallace and another
person in the stolen blue Acura. Police recovered from a backpack
9
found inside the Acura a 9mm Jimenez handgun that was
determined by a ballistics expert to be the gun stolen from Moss at
the pawn shop and the same gun that fired six of the seventeen shell
casings found at the scene where Bottoms was killed. A second
Jimenez 9mm handgun fired the other eleven shell casings
recovered at the scene of Bottoms’s murder. This same gun, which
was never recovered by police, had also been used at the shooting on
June 12, 2014, at the Sells Avenue boarding house. In July 2014,
Bowdery posted a photo on social media showing him and Barber
holding black guns with the notation, “Shooter featuring Slugger,
we loaded.” “Shooter” was Bowdery’s street name, and “Slug” was
Barber’s street name. A gun in the photo was identified as a Bryco
Jennings Nine or Jimenez JA-Nine, which was described at trial as
the same type of gun as one of the guns used in the shooting on June
13, 2014.
1. Barber contends that the evidence in support of his
10
conviction for the murder of Bottoms 2 was insufficient under
Georgia law because the testimony of Washington was not
sufficiently corroborated, as required by OCGA § 24-14-8.3 We
disagree.
OCGA § 24-14-8 provides, in pertinent part, that, while “[t]he
testimony of a single witness is generally sufficient to establish a
fact,” in felony cases where the only witness is an accomplice to the
crimes, the witness’s testimony alone will be insufficient to support
a defendant’s convictions. Thus, “[w]hen the only witness is an
accomplice, corroborating evidence is required to support a guilty
verdict.” Raines v. State, 304 Ga. 582, 587 (2) (820 SE2d 679) (2018).
Although OCGA § 24-14-8 provides that corroboration is
required[,] . . . only slight evidence of corroboration is
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
under 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.
(Citations and punctuation omitted.) Id. at 588 (2). “[T]he
independent evidence must corroborate both the identity of the
defendant and the fact of his participation in the crime.” (Citation
and punctuation omitted.) Pittman v. State, 300 Ga. 894, 896 (1) (799
SE2d 215) (2017) (setting out requirement for corroboration of
accomplice testimony under former OCGA § 24-4-8). See also
Ramirez v. State, 294 Ga. 440, 442 n.5 (754 SE2d 325) (2014) (noting
that the provisions of former OCGA § 24-4-8 were carried forward
into the current Evidence Code as OCGA § 24-14-8).
Even assuming the jury found Washington to be an accomplice,
other evidence that did not come from Washington, including the
pawn shop video, Hall’s testimony, cell phone record evidence, and
12
evidence of Barber’s motive for shooting in retaliation for the gang-
related shooting of his step-father, corroborated Washington’s
testimony.
According to Washington, Barber stepped out of the stolen
Acura and, while standing near the intersection of Legacy Drive and
Sells Avenue, shouted, “There go them Billies.” Barber then ran
around the corner and started shooting at Bottoms and Robinson.
She testified that immediately after the shooting, Barber explained
that he shot Bottoms and Robinson because they were the ones who
“shot up” his mother’s house. Hall described seeing four men in and
around a car at the same intersection on the morning of June 13,
2014, then heard yelling, followed by multiple gunshots. She
described the shooter as wearing clothing similar to what Barber
was seen wearing during the robbery at the pawn shop just hours
before the shooting.
Hall’s description of the shooter’s clothing, location, and
physical characteristics was consistent with Washington’s trial
testimony and statements to police about what Barber was wearing
13
and doing at the time of the shootings. Hall’s description of the
shooter’s clothing was also consistent with video evidence of the
clothing Barber was wearing during the robbery at the pawn shop
that took place just hours before Bottoms was killed. The jury could
decide for itself at trial how closely the description of the man
described by Hall resembled Barber. See Johnson v. State, 288 Ga.
803, 805-806 (2) (708 SE2d 331) (2011) (Witness’s physical
description of shooter and description of shooter’s clothing, although
not the strongest corroboration, was sufficient to corroborate
accomplice’s testimony identifying the defendant as the shooter.).
In addition, evidence from the cell phone records of
Washington, Barber, Wallace, and Bowdery indicated that Barber
was associated with each of them, that they were communicating
leading up to the time of the shooting, and that Washington called
Barber at 7:00 a.m. the morning of the shooting. The jury was also
authorized to determine from the pawn shop video and Bowdery’s
social media post that hours before the shooting and after the
shooting Barber was in possession of one of the 9mm guns used to
14
shoot Bottoms.
This evidence provided sufficient corroboration of
Washington’s testimony. 4 See Poole v. State, 312 Ga. 515, 522 (863
SE2d 93) (2021) (Physical evidence collected at scene, witness’s
description of events, postings to defendant’s social media accounts,
and cell phone data showing defendant and co-defendants
communicating during time span closely coinciding with the
shooting and in the area near the crime scene when the crime
occurred was sufficient to corroborate accomplice testimony.);
Sheard v. State, 300 Ga. 117, 119 (1) (793 SE2d 386) (2016)
(Evidence that defendant was observed discussing plans to rob the
victim, a person matching the defendant’s description was seen in
the area at the time of the crimes, the defendant was in possession
of a large amount of cash after the crimes, and the defendant had a
motive to commit the crimes was sufficient to corroborate the
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.);
Crawford v. State, 294 Ga. 898, 901-902 (1) (757 SE2d 102) (2014)
(Phone records demonstrating communications between co-
defendants were sufficient to corroborate accomplice’s testimony
inculpating the defendant.); Threatt v. State, 293 Ga. 549, 551-552
(1) (748 SE2d 400) (2013) (Defendant’s false statements to police and
communications between co-defendants both before and after the
crimes corroborated accomplice’s testimony.).
2. Barber contends the trial judge was required to sua sponte
recuse himself after making statements Barber alleges called into
question the judge’s impartiality. Barber did not move to recuse the
trial judge during trial, however, and there is no evidence in the
record indicating that Barber followed the procedures set out in
Uniform Superior Court Rule 25.1 for moving to recuse a judge.5
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
16
Accordingly, this enumeration of error has not been preserved for
appeal. See Lopez v. State, 310 Ga. 529, 537 (6) (852 SE2d 547)
(2020).
3. Barber also asserts the trial court erred when it resentenced
him on his convictions for participation in gang activity and
possession of a firearm during the commission of a crime. After
reviewing the record, we discern no error in Barber’s sentences.
As stated, Barber was found guilty, in pertinent part, of
participation in criminal street gang activity (Count 1), malice
murder (Count 2), and felony murder predicated on the underlying
felony of participation in criminal street gang activity (Count 5).
With regard to Barber’s conviction on Count 1 for participation in
gang activity, the trial court, in its initial sentencing order,
concluded that this conviction was vacated by operation of law, and
therefore, imposed no sentence for Count 1. Barber, however, should
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
for felony murder predicated on the underlying felony of
participation in gang activity was vacated by operation of law in
light of his conviction on Count 2 for malice murder. See Malcolm v.
State, 263 Ga. 369 (5) (434 SE2d 479) (1993). This left, as a matter
of law, no felony murder charge in which to merge Barber’s
conviction on Count 1 and nothing to require the vacation of his
conviction on Count 1. See Carter v. State, 299 Ga. 1, 2 (2) (785 SE2d
532) (2016). Accordingly, Barber should have been sentenced for his
participation in gang activity conviction at his original sentencing
hearing. Similarly, the trial court originally ordered that Barber’s
sentence on Count 10 for possession of a firearm during the
commission of a felony run concurrent with his other sentences,
despite mandatory language in OCGA § 16-11-106 (b) that an
individual convicted of possession of a firearm during the
commission of a felony “shall be punished by confinement for a
period of five years,” and that this sentence shall “run consecutively
to any other sentence which the person has received.”
18
“A trial judge has the authority to correct a void sentence at
any time, and a sentence is void if the court imposes punishment
that the law does not allow.” (Citations and punctuation omitted.)
Parrott v. State, 312 Ga. 580, 582 (864 SE2d 80) (2021). Because the
trial court’s original sentencing order did not include the sentences
required by law for Barber’s convictions on Counts 1 and 10 of the
indictment, the trial court’s subsequent correction of those void
sentences was not only authorized but was required. 6
Judgment affirmed. All the Justices concur.
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