HENDERSON v. THE STATE; MASON v. THE STATE
S23A0559, S23A0720
In the Supreme Court of Georgia
Decided: August 21, 2023
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.
After a joint trial, Demetre Mason and Frankland Henderson were convicted of malice murder and other crimes in connection with the shooting deaths of Sonia Williams and Shaniqua Camacho.1
In a separate appeal, Henderson raises six claims. He contends that the admission at trial of Mason‘s out-of-court statement to police violated Henderson‘s rights under the Confrontation Clause of the Sixth Amendment; the trial court should have given an instruction limiting how the jury could consider Mason‘s out-of-court statement; the testimony of one witness for the prosecution, who he claimed was an accomplice, was insufficiently corroborated; the trial court should have excluded as hearsay testimony about statements from an associate of Henderson and Mason, because there was insufficient evidence to show that the statements were made in furtherance of a conspiracy so as to fall within a hearsay exception; the trial court abused its discretion in denying Henderson‘s motion to sever his case; and the trial court abused its discretion in admitting photos of Henderson making gang signs without proper authentication.
Each of Henderson‘s claims fails. Admitting Mason‘s out-of-court statement did not violate the Confrontation Clause under Bruton v. United States, 391 U.S. 123 (88 SCt 1620, 20 LE2d 476) (1968), because it did not, standing alone, directly implicate Henderson. See Pender v. State, 311 Ga. 98, 110-111 (2) (b) (856 SE2d 302) (2021). It was not plain error to fail to give a limiting instruction about Mason‘s out-of-court statement, because the absence of the instruction is unlikely to have affected the outcome of the trial. No corroboration was needed for the testimony of the witness Henderson claims was an accomplice, because there was ample evidence from which the jury could find that she was not an accomplice. The out-of-court statements of Henderson‘s associate were properly admitted under the hearsay exception for statements in furtherance of a conspiracy because the evidence was sufficient
1. Recounted in the light most favorable to the verdicts, the evidence at trial showed the following.
(a) In May 2014, Mason and Henderson were living on Maypop Lane in DeKalb County with Michael Jenkins, Jaimee Harrell, Katrina Shardow, Malcolm Brown, Frederick Rosenau, and Brandi Singleton. All except Singleton were members of the Nine Trey Gangsters, a subset of the Bloods gang. Singleton was not a gang member, but she was familiar with the gang and was in a sexual relationship with Brown. The highest ranking gang member in the house was Rosenau, followed by Brown, followed by Harwell. Below Harwell were Mason, Henderson, and Jenkins, who were all of the same rank.
On the night of May 18 to 19, 2014, Mason brought his girlfriend, Williams, and Williams‘s friend, Camacho, to the house. Williams had been there once before, and she and Brown did not get along. On this occasion, Mason, Williams, Camacho, Singleton, Rosenau, and Brown all went to an upstairs bedroom. Brown asked Mason why he kept bringing Williams over, since Williams had “too much mouth.” Brown began pulling at Williams‘s clothing, hair, and body. Williams objected and told Brown that he was “acting like a b***h.” Brown replied, “Oh, I‘m acting like a b***h.” Brown then left the room and went downstairs. Mason tried to leave with Williams at that point, but Rosenau told him they “[weren‘t] going to leave like that.”
Downstairs, Brown told Harwell and Shardow to “[g]o get” Williams. Brown then returned to the bedroom with Harwell and Shardow, along with Henderson and Jenkins. Harwell moved aggressively toward Williams and threatened her. Williams responded that Harwell “wasn‘t going to touch her.” Harwell hit Williams in the face, and then Harwell and Shardow both began beating Williams. Brown encouraged the beating. Mason did not intervene.
After about ten minutes, Harwell and Shardow let Williams get up. Williams was “screaming and cursing” and asking Mason why he had not helped her. Harwell and Shardow then picked her up and dragged her down the stairs. Williams did not want to leave without her shoes and her purse, but Harwell and Shardow threw her out the front door. At that point, Camacho, Williams‘s friend, tried to retrieve Williams‘s belongings and to leave with Williams, but Harwell held onto Williams‘s purse. Camacho told everyone it was “nice to meet them” and was allowed to leave.
Outside the house, Williams had not left the property. She was pounding and kicking at the front door, screaming that she would “bring some GDs“—meaning Gangster Disciples, a gang that was not friendly with the Bloods—to “come and shoot up the place.” Brown told Mason, “You need to control your b****h.” Brown said that if Williams brought a group of Gangster Disciples to the house, there would be a problem. Eventually Williams stopped shouting and pounding on the door, and she and Camacho left.
Brown ordered Mason, Henderson, and Jenkins to go find the two women. Brown confirmed that the three were armed, and instructed them, “Make sure that y‘all do what y‘all need to do and make sure that [Mason] does what he need to do because he acting like he in love.” The three men, all carrying guns, left in a car. Brown stayed back at the house, but he was in communication with the three while they were out, urging them to find Williams and Camacho and asking to be kept apprised of what Mason, in particular, was doing.
Five or ten minutes later, the three men returned. Henderson reported to Brown: “Yeah, we did that. They flatlined. It‘s over with.” Brown asked several times if
Brown instructed everyone to delete any pictures they had with Williams on Instagram. Harwell and Shardow riffled through Williams‘s purse and then burned it. The following day, Harwell and Singleton threw away some of Williams‘s other belongings at an elementary school down the street.
(b) At 4:14 a.m. on May 19, 2014, Alyssia Smith, who lived near the house on Maypop Lane, was awakened by the sound of gunfire. Smith checked to make sure her children were safe and then went back to bed. The next morning, as she was walking to her car, Smith noticed two female bodies on the ground. Smith told her fiancé, and they called 911.
The responding officers identified the victims as Williams and Camacho. A medical examiner later determined that both women had died from multiple gunshot wounds. A .40-caliber bullet and a .38-caliber bullet were recovered from Williams‘s body. Officers also found seven spent Federal .40-caliber Smith & Wesson shell casings near the bodies.
Investigating officers obtained Williams‘s phone number from her family and requested her phone records. The records showed that on May 18 and May 19, Williams‘s phone was in contact multiple times with a phone number ending in -5686. Officers learned that the subscriber associated with the -5686 number was Mason. Officers also learned that on May 19—the day after the murders—the 5686 account was canceled and a new number was assigned to the same phone.
Mason became a suspect. On May 30, he was arrested at the Maypop Lane home. A search of the home revealed a red bandana, a red notebook containing a written oath, and a number of electronic devices, including Mason‘s phone. Officers then got a search warrant for Mason‘s phone and learned that Mason had exchanged a series of text messages on May 19 with someone named “Turk.” Among those messages were an incoming text from Turk that read, “Who was it“; a reply from Mason‘s phone saying, “She had to go Blood. I bust that a** four times each on Blood on DaMobb“; a message from Turk asking, “With what strap“; and Mason‘s answer, “Mine.”
Officers interviewed Mason. The interview was recorded, and some of it was played for the jury. Mason initially claimed that he had been in Florida on the night of the murders. But when police confronted him with his text message exchange with Turk, his statement changed. Mason told police that he was ordered by Brown to kill Williams and Camacho. Mason denied actually shooting the victims, but admitted he was at the scene as the driver.
Separately, a few days before Mason‘s arrest, Singleton came forward and told police what happened at the Maypop Lane home on the night of the murders. Based on the information from Singleton, officers got arrest warrants for Henderson, Jenkins, and Brown. About two months after Singleton spoke to police, Mason called her and asked her not to testify in court.
(c) At trial, the jury heard evidence about one of the murder weapons. No weapon was ever found, but Mason told police in his interview that one of the guns used in the shooting was stolen from Douglas County. A trial witness, Amber Diamond, testified that in April 2014 (about a month before the murders), she, Mason, and two other men—including co-indictee Traon Turk—had stolen a gun and ammunition from her ex-boyfriend‘s house in Douglas County. The ex-boyfriend, Teddy Brucker, also testified at trial and confirmed that his .40-caliber Ruger handgun was stolen from his Douglas County home in April 2014.
Ballistics evidence connected Brucker‘s gun to the murders. Brucker testified that he reported the theft of his gun to police. He also explained that when he bought the gun, it came with a pre-fired spent shell casing that could be used for comparison purposes. Brucker said he turned that spent shell casing over to police. Officers later compared that casing to the spent shell casings that were recovered at the crime scene, and determined that they were fired from the same weapon.
Pinckney first explained generally about gang structure and culture. He said that within the larger Bloods gang were a number of subsets, including the subset involved in this case, the Nine Trey Gangsters. Nine Trey Gangsters, like other subsets of the Bloods, use the color red, and members sometimes signal their affiliation with a red “flag,” typically a bandana worn on the wrist or neck, or in the left pocket. The gang has a distinct organizational structure. At the top is the “OG” or “godfather.” Below that are several “floors,” or levels of rank, known as the “fifth floor,” “fourth floor,” and so on. And below the floors are captains, sergeants, and foot soldiers. It is understood within the gang that a lower-ranking member must follow orders from a higher-ranking member.
Pinckney also testified about the evidence of gang involvement in this case. He noted that Mason had tattoos that indicated his involvement in the Bloods, including a five-pointed star and the letters M-O-B, which stood for “member of Blood.” Photos of Mason showed him wearing a red bandana and making the gang sign “C-K,” which stands for “Crip killer,” referring to a rival gang of the Bloods. Other photos showed Henderson making Blood gang signs. In addition, notebooks recovered from inside the Maypop Lane home contained gang terminology and records of gang members’ attendance at meetings and payment of dues. Another notebook from the house contained a written oath swearing loyalty to the Nine Trey Gangsters; a similar oath was found in Mason‘s cell phone. Text messages from Mason‘s phone shared gang information, including rules for membership.
Based on all of that evidence, Pinckney concluded that Mason and Henderson were members of the Nine Trey Gangsters subset of the Bloods. Pinckney further concluded that the way that the crime was committed—with Brown ordering Mason, Henderson, and Jenkins to carry out the killings—indicated that it was a gang activity.
No defendant testified at trial.
Case No. S23A0720
2. Mason contends that the evidence at trial was constitutionally insufficient to support his convictions for malice murder. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). We evaluate a due process challenge to the sufficiency of the evidence by viewing the evidence presented at trial in the light most favorable to the verdicts, and asking whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Peacock v. State, 314 Ga. 709, 714 (2) (b) (878 SE2d 247) (2022). “We leave to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts.” Perkins v. State, 313 Ga. 885, 891 (2) (a) (873 SE2d 185) (2022) (citation and punctuation omitted).
A person is guilty of malice murder if “he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.”
The evidence here was sufficient to support Mason‘s convictions for malice murder. Mason admitted that he was at the scene of the shootings. He was connected to one of the murder weapons through his statement to police, ballistics evidence, and the testimony
3. Mason also contends that the trial court should not have admitted evidence about Mason‘s alleged theft of the .40-caliber handgun a month before the murders. In Mason‘s view, the trial court failed to ensure that the probative value of the theft was not substantially outweighed by its prejudicial effect. See
Relevant evidence, although generally admissible, see
Mason argues on appeal that the trial court should have conducted a “hearing” to determine whether the alleged theft of the handgun satisfied Rule 403. But nothing in the rule or our case law requires a hearing; the role of the trial court in applying Rule 403 is simply to “undertake in each case a considered evaluation of the proffered justification for the admission” of evidence and then “make an independent determination” whether the evidence satisfies the rule. State v. Orr, 305 Ga. 729, 737 (3) (827 SE2d 892) (2019) (citation and punctuation omitted). And here the trial court did just that. When Mason tried to exclude the handgun theft, the trial court ruled that “any prejudice to [Mason] is far outweighed by the relevance that the issue may determine this evidence [of the alleged handgun theft] to have.” Although the trial court did not use the exact wording of Rule 403, its finding reflected the “considered determination” that the trial court had to make. See id.
And that determination under Rule 403 was not an abuse of the trial court‘s discretion. Evidence that Mason stole the handgun was certainly probative, because it directly connected Mason to the murder weapon. See Jordan v. State, 313 Ga. 841, 845-845 (2) (b) (874 SE2d 67) (2022) (evidence that machine gun and ammunition were stolen four months before murder, that they were the same caliber used in the murder, and that the defendant‘s known associate lived next door to where the burglary occurred, satisfied Rule 403); Harris v. State, 313 Ga. 225, 233 (4) (869 SE2d 461) (2022) (photo of defendant holding a type of gun that could have been used in the charged crime a week before the shooting satisfied Rule 403). As to prejudice, evidence of the theft may have been prejudicial to Mason—
substantial: it related directly to the crime Mason was charged with committing. The trial court therefore did not abuse its discretion in admitting the evidence.2
Case No. S23A0559
4. Henderson advances two related claims of error about Mason‘s recorded out-of-court statement to police, an edited version of which was played at their joint trial. First, he claims that admitting the edited statement violated his Confrontation Clause rights under Bruton. Second, he claims that even if admitting the statement did not violate his rights under Bruton, admitting the statement without instructing the jury to consider the statement only against Mason violated his Confrontation Clause rights.
(a) The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.”
But joint criminal trials introduce a complication. In a joint trial, the State may seek to present an incriminating out-of-court statement of a co-defendant. The complication? The co-defendant whose statement is introduced has, and often will assert, the right under the Fifth Amendment‘s Self-Incrimination Clause not to testify. See, e.g., Fitts v. State, 312 Ga. 134, 140 (2) (859 SE2d 79) (2021). But if the co-defendant asserts that right, the defendant who is implicated by the statement would be unable to cross-examine the witness who would testify against him—a clear-cut violation of the defendant‘s rights under the Confrontation Clause. See id.
The longstanding “solution” to this Fifth Amendment-Sixth Amendment conflict is a limiting instruction: The trial court admits the co-defendant‘s statement but instructs the jury to consider it only against the co-defendant. With that instruction in place, the co-defendant “ordinarily . . . is not considered to be a witness ‘against’ [the] defendant,” Samia v. United States, 599 U.S. __, __ (II) (143 SCt 2004, 2012, __ LE2d __) (2023) (quoting Richardson v. Marsh, 481 U.S. 200, 206 (II) (107 SCt 1702, 95 LE2d 176) (1987)), so the Confrontation Clause does
But it is not quite so simple. This limiting-instruction fix puts a great deal of faith in the jury‘s ability to consider the co-defendant‘s statement against the co-defendant, but to ignore it entirely when considering the guilt or innocence of the defendant. To be sure, jurors are instructed all the time in our legal system to compartmentalize in this way—to consider certain evidence only for specific purposes, see, e.g., Jones v. State, 311 Ga. 455, 462 & n.6 (3) (a) (858 SE2d 462) (2021) (jury instructed to consider evidence of defendant‘s other acts only to show intent), or to disregard evidence that they were not supposed to hear, see Meadows, 316 Ga. at 26 (4) (a) (jury instructed to disregard prosecutor‘s remark that gun used in shooting was not presented as evidence at trial); Gude v. State, 313 Ga. 859, 869-870 (5) (874 SE2d 84) (2022) (jury instructed to disregard detective‘s opinion that defendant‘s alleged action was “cold“). And it is “the almost invariable assumption of the law that jurors follow their instructions.” Richardson, 481 U.S. at 206 (II). But only “almost.” In Bruton, the U.S. Supreme Court explained that when the out-of-court statement of a co-defendant who “stands accused side-by-side with the defendant” is “powerfully incriminating” against the defendant in a joint trial, the “risk that the jury will not, or cannot, follow” a limiting instruction is too great. 391 U.S. at 135-136. In such cases, a limiting instruction is not an “adequate substitute for [the defendant‘s] constitutional right of cross-examination,” and so the admission of the co-defendant‘s statement can violate the defendant‘s Confrontation Clause rights. Id. at 126, 137.
The Bruton rule, however, has proved narrow. In Richardson, the Court clarified that Bruton does not apply to a statement that “[i]s not incriminating on its face, but bec[omes] so only when linked with evidence introduced later at trial.” Richardson, 481 U.S. at 208 (II). The Court reasoned that when a jury has to link such a statement with other evidence and then “infer” guilt, “it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.” Id. And in Samia, the Court held that the Confrontation Clause “[i]s not violated by the admission of a nontestifying codefendant‘s confession that [does] not directly inculpate the defendant and [i]s subject to a proper limiting instruction.” Samia, 143 SCt at 2018 (no Confrontation Clause violation when an officer testified that Samia‘s co-defendant confessed about “a time when the other person he was with pulled the trigger” and otherwise referred to an “other person,” and the trial court instructed the jury that the co-defendant‘s confession should be considered only against the co-defendant).
This recent holding aligns with our Court‘s prior precedent applying Bruton. We have consistently held that Bruton excludes only a statement of a non-testifying co-defendant that, standing alone, “directly inculpates” the defendant, Simpkins v. State, 303 Ga. 752, 755 (II) (814 SE2d 289) (2018) (quoting Thomas v. State, 300 Ga. 433, 439 (2) (a) (3) (796 SE2d 242) (2017)), but not an out-of-court statement that does not incriminate the defendant unless “linked with other evidence at trial,” Simpkins, 303 Ga. at 756 (II) (citation and punctuation omitted); see Pender, 311 Ga. at 110-111 (2) (b) (statements that became incriminating about defendant only when linked with other evidence about defendant‘s involvement in the crimes did not violate Bruton). That means that “[t]he fact that the jury might infer from the contents of the co-defendant‘s statement in conjunction with other evidence, that the defendant was involved does not make the admission of the co-defendant‘s statement a violation of the Confrontation Clause.” Hanifa v. State, 269 Ga. 797, 803-804 (2) (505 SE2d 731) (1998), disapproved on other grounds by Clark v. State, 315 Ga. 423 (883 SE2d 317) (2023). So, for instance, a statement that refers to the declarant and “another individual” committing the crime does not violate Bruton‘s rule, see Simpkins, 303 Ga. at 756 (II), but a statement that refers to the defendant by nickname, refers to all other individuals by name, makes clear that one name has been redacted, and refers to the crime as having been committed by “someone” or
(b) Turning to Henderson‘s claims, we start with his Bruton claim. Particularly in the light of Samia, that claim fails.3 Before trial, the State and trial counsel worked together to cut from Ma-son‘s recorded statement any mention of his co-defendants (Henderson and Jenkins) by name or nickname. What was left cannot be said to have “directly inculpated” Henderson, see Samia, 143 SCt at 2018. As relevant here, Mason said that someone pointed a gun at him and “threatened for them to do it and me to drive.” And he said that “we had to go find” the two women, “we jumped in the car,” and, later, “[t]hey pulled behind me, there were like where the f**k y‘all goin, turn back around . . . they told me to get out of the car, we got out of the car and then boom it happened.” So Mason described himself and a number of unspecified other people carrying out the murders, referring to “we,” “us,” “they,” or “them.” But nothing in the statement itself indicated that one of those other people was Henderson in particular, as opposed to any of the other gang members mentioned in the course of the trial (or, indeed, anyone else). Especially compared to the co-defendant‘s confession in Samia—which described only a single “other person” and thus could be more readily understood to refer to Samia specifically—Mason‘s statement was not directly inculpatory of Henderson to the degree required to establish a violation of the Bruton rule. That the jury could have inferred that Mason was referring to Henderson based on Singleton‘s testimony and the fact that Henderson was a co-defendant is not enough to violate his Confrontation Clause rights under Bruton. See Morris v. State, 311 Ga. 247, 255 (3) (857 SE2d 454) (2021) (no Bruton violation when co-defendant‘s out-of-court statement “only incriminate[d] [defendant] when combined with other evidence presented at trial“); Pender, 311 Ga. at 110-111 (2) (b); Simpkins, 303 Ga. at 756 (II); Hanifa, 269 Ga. at 803-804 (2). Henderson‘s Bruton claim fails on the merits.
(c) Henderson has a second Confrontation Clause claim. He contends that even if admitting the statement did not violate his rights under Bruton, it still violated his Confrontation Clause rights because the jury was never instructed to consider the statement only against Mason.
Henderson did not ask for a limiting instruction at trial, so we review this claim only for plain error. See
We agree that not giving a limiting instruction was error. As we recounted above, the longstanding practice of admitting a non-testifying co-defendant‘s statement or confession in a joint trial avoids Confrontation Clause problems only because the trial court instructed the jury to consider it only against the co-defendant. See Samia, 143 SCt at 2018; Richardson, 481 U.S. at 211 (II); Colton v. State, 292 Ga. 509, 511 (2) (739 SE2d 380) (2013) (“[a] co-defendant‘s statement meets the Confrontation Clause‘s standard for admissibility
But Henderson has not shown plain error because he has not shown that the lack of instruction likely affected the outcome of the trial. First, even without Mason‘s out-of-court statement, the evidence against Henderson was quite strong. Singleton‘s narrative testimony described in detail how Henderson, Mason, and Jenkins armed themselves and left the house to look for the victims, and how, when they returned, Henderson repeatedly assured Brown that the victims had “flatlined.” Singleton‘s story was corroborated in part by Mason‘s text messages to Turk. And Investigator Pinckney gave his expert opinion that Henderson was a member of the gang. Compared to that evidence, Mason‘s statement was unlikely to have carried as much weight. For one thing, the statement did not obviously implicate Henderson: not only did Mason not mention Henderson by name or nickname, but his references to “they” and “them” reasonably could have referred to any of the other gang members who were known to the jury and were known to be involved in the killings. Moreover, the jury might have afforded less weight to Mason‘s statement if it believed the statement was self-serving and designed to minimize Mason‘s own culpability. See Samia, 143 SCt at 2014 (II) (B) (noting that “jurors may cast a critical eye on accomplice testimony—and, in particular, self-serving accomplice testimony . . . that accuses another of the most culpable conduct“). That is especially likely here, where Mason‘s statement to police (in which he contended he was only the driver) was contradicted by his text messages to Turk (in which he boasted of committing at least one killing himself with his own gun).
Given the otherwise strong case against Henderson, the admission of Mason‘s statement was unlikely to have affected the outcome of the trial, so Henderson‘s claim of plain error fails. See Morris, 311 Ga. at 256 (4) (assuming without deciding it was error to admit co-defendant‘s out-of-court statement without a limiting instruction, the error likely did not affect the outcome of trial given that the statement did not directly identify the defendant and there was other substantial evidence of guilt); Lupoe v. State, 300 Ga. 233, 250 (16) (794 SE2d 67) (2016) (defendant did not show harm required for plain error from admission of testimony about the defendant‘s gang membership that may have violated the Confrontation Clause, in light of substantial other evidence of the defendant‘s gang membership).
6. Next, Henderson contends that there was not sufficient evidence to corroborate the testimony of Brandi Singleton, who he contends was an accomplice to the crimes. See
(a) At trial, Singleton testified about her relationship to the Nine Trey Gangsters. She
Eventually, Singleton escaped by texting her boyfriend‘s mother and asking the mother to send her a text pretending that something was wrong with Singleton‘s son and asking Singleton to come to the hospital. When Singleton received that text, she used it as a pretext to get a ride to the hospital, where she met her boyfriend‘s mother and went with her instead of back to the Maypop Lane house.
The trial court‘s instructions to the jury included these charges:
The testimony of [an] accomplice alone is not sufficient to warrant a conviction. The accomplice‘s testimony must be supported by other evidence of some type and that evidence must be such as would lead to the inference of the guilt of the accused independent of the testimony of the accomplice.
[. . .]
The sufficiency of the supporting evidence of an accomplice is a matter solely for you, the jury, to determine. Whether or not any witness was [an] accomplice is a question for you, the jury, to determine from the evidence in this case.
(b) “The testimony of a single witness is generally sufficient to establish a fact.”
Here, Singleton was the only witness testifying to much of what happened at the house on Maypop Lane, but ample evidence authorized the jury to conclude that Singleton was not an accomplice. She testified that she was not a member of the gang. She testified extensively about her fear of the gang, and of Brown specifically. She talked about how Brown controlled her movements and communications. And she detailed her days-long effort to get away, even while she had left with Harwell to throw away Williams‘s belongings. All of that authorized a conclusion that Singleton did not have a
7. Henderson contends that the trial court abused its discretion by allowing Singleton to testify about certain things that Malcolm Brown said on the night of the murders. The trial court admitted Singleton‘s testimony, over counsel‘s objection, under
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
ponderance of the evidence that a conspiracy existed, that the conspiracy included both the declarant and the defendant against whom the statement is offered, and that the statement was made during the course of and in furtherance of the conspiracy. See Stafford v. State, 312 Ga. 811, 822 (5) (a) (865 SE2d 116) (2021); Kemp, 303 Ga. at 392 (2) (b).4
As with admissibility rulings generally, we review a trial court‘s ruling to admit evidence under Rule 801 (d) (2) (E) for an abuse of discretion. See State v. Lane, 308 Ga. 10, 20 (3) (838 SE2d 808) (2020). As part of this review, we accept a trial court‘s factual findings unless they are clearly erroneous. See Kemp, 303 Ga. at 393 (2) (b). And we have noted before that a trial court‘s determination “whether a statement was made in furtherance of a conspiracy” is a factual finding reviewed for clear error. Id. Further, in reviewing that determination, “[w]e apply a liberal standard.” Id.
A conspiracy is “an agreement between two or more persons to commit a crime.” Jones v. State, 305 Ga. 750, 752 (2) (a) (827 SE2d 879) (2019). When, as here, a defendant is charged under the Street Gang Terrorism and Prevention Act (“Gang Act“) with committing a crime in furtherance of the purposes of a criminal street gang, he may be part of two conspiracies: the immediate conspiracy to commit the crime, and the “larger criminal conspiracy” to participate in
Most of Brown‘s remarks that Henderson now challenges were clearly in furtherance of the conspiracy to murder Williams and Camacho and, by extension, of the “larger conspiracy” to participate in the Nine Trey Gangsters. The State presented ample evidence that Brown and Henderson were members of the Nine Trey Gangsters, including Singleton‘s testimony, Investigator Pinckney‘s expert opinion, and the photos of Henderson making gang signs. The State also presented evidence that killing Williams and Camacho furthered the gang‘s purposes: Singleton and Mason said Brown, a high-ranking member, ordered Henderson, Mason, and Jenkins, all lower-ranking members, to kill Williams and Camacho, and Singleton and Pinckney both explained this was because Williams was threatening to bring Gangster Disciples, a rival of the Bloods, to the house. Many of Brown‘s statements challenged here were direct instructions to Henderson and his co-defendants to carry out that killing: to arm themselves, find the women, and “do what y‘all need to do.” And other statements were requests for confirmation that Mason was following those instructions. All of those remarks easily meet the “liberal standard” that applies in determining whether a hearsay statement is in furtherance of a conspiracy. See Kemp, 303 Ga. at 393 (2) (b); Chavers, 304 Ga. at 893 (3) (declarant‘s statements targeting someone to be beaten or killed and telling a fellow gang member that the victim did not know “how real the s**t is about to get,” together with evidence that defendant was critical of the victim and spoke about killing violators of gang rules, that declarant and defendant were in gang, and that declarant met with defendant just before defendant killed victim, showed that declarant and defendant conspired to murder victim and that they were part of “larger criminal conspiracy” to participate in the gang) (citation and punctuation omitted).
Certain of Brown‘s statements arguably were not in furtherance of any conspiracy. His remark that Williams had “too much mouth” and his sarcastic retort to Williams that “Oh, I‘m acting like a b***h” were unrelated either to the murders or to participation in the Nine Trey Gangsters. But those statements were not hearsay, because they were not offered to prove the truth of the matters asserted. See
Because each of the statements Henderson challenges was either in furtherance of a conspiracy and thus admissible under Rule 801 (d) (2) (E), or not hearsay at all, his claim that these statements were inadmissible hearsay fails.
8.
Henderson contends that the trial court should have granted his pretrial motion
When two or more defendants are indicted jointly for a capital felony where the death penalty has been waived, for a non-capital felony, or for a misdemeanor, the defendants can be tried together or separately in the discretion of the trial court. See
Here, the first and third factors weighed against severing the trials. The jury was not likely to be confused about the evidence or the law because all three co-defendants—Henderson, Mason, and Jenkins—were accused of the same conduct, and the State argued that they acted together in committing the crimes. See Sillah, 315 Ga. at 750 (3) (severance not necessary when, among other things, “the law and evidence were substantially the same for all of” the gang-member co-defendants); Collins, 312 Ga. at 736 (4) (confusion of evidence and law unlikely because “the three co-defendants were charged with the same offenses stemming from the same incident with largely the same evidence“) (citation and punctuation omitted). For the same reason, there were no antagonistic defenses at trial. The three co-defendants were accused of the same conduct, and none of their defenses were inconsistent or relied on blaming one another. See Collins, 312 Ga. at 737 (4) (severance not required when there was “sufficient evidence of a common scheme or plan to commit a criminal offense“) (citation and punctuation omitted).
The second factor is closer. The State‘s case against Henderson was not quite as strong as its case against Mason, both as to the murders and as to membership in the gang. Some of the evidence against Mason, like his text messages with Turk or the gang-related information from his phone, might not have been admitted at a trial of Henderson alone. And it is conceivable that some of that evidence, particularly about Mason‘s gang connections, might have been imputed to Henderson.
But that is not enough to require severance. “[T]he fact that the evidence as to one of the co-defendants is stronger does not demand a finding that the denial of a severance motion is an abuse of discretion” when, as here, “there is evidence showing that the defendants acted in concert.” Smith v. State, 308 Ga. 81, 86-87 (2) (839 SE2d 630) (2020) (citation and punctuation omitted). See also
9.
Finally, Henderson contends that the trial court abused its discretion by admitting photos of Henderson making gang signs because they were not properly authenticated.
During Investigator Pinckney‘s testimony, the State sought to introduce photos that showed Henderson making gang signs, either alone or with his co-defendants. Pinckney initially testified that he recognized the photos as coming from “a social media account,” that some came from the Charlotte-Mecklenburg Police Department in North Carolina, and that he recognized the people in them. Defense counsel objected that there was a lack of foundation and identification for the photos. Pinckney then testified that he recognized the photos and that he recognized the people in them.
Evidence like photos may be authenticated with evidence “sufficient to support a finding that the matter in question is what its proponent claims.”
The photos here were authenticated by Investigator Pinckney, who testified that he was familiar with them and with the people in them. See
Judgments affirmed. All the Justices concur.