In the Supreme Court of Georgia

Decided: February 7, 2023

S22A1266. HUFF v. THE STATE

 COLVIN, Justice.

Appellant Jazzy Huff was convicted of felony murder and 

related offenses in connection with the August 2019 shooting death 

of Zenas Lee Davis.1 On appeal, Appellant contends that (1) 

insufficient evidence supported his convictions; (2) the trial court 

 1 Davis died on August 21, 2019. On September 4, 2019, a Dougherty 

County grand jury indicted Appellant for malice murder (Count 1), felony 

murder predicated on aggravated assault (Count 2), aggravated assault (Count 

3), and possession of a firearm during the commission of a felony (Count 4). A 

jury trial was held from March 9 to 12, 2020. Appellant was acquitted of malice 

murder (Count 1) but was found guilty of the remaining counts. On August 

19, 2020, the trial court imposed a sentence of life in prison with the possibility 

of parole for felony murder (Count 2) and a consecutive sentence of five years’

probation for possession of a firearm during the commission of a felony (Count 

4). The aggravated assault count (Count 3) merged into the felony murder 

count (Count 2) for sentencing purposes. On September 15, 2020, Appellant’s 

trial counsel timely filed a motion for new trial, which was amended through 

new counsel on October 1, 2021. The trial court denied the amended motion 

on June 13, 2022. Appellant filed a timely notice of appeal. The case was 

docketed to our August 2022 term and submitted for a decision on the briefs.
2

erred in admitting irrelevant, improper, and prejudicial character 

evidence that Appellant held a firearm “gangster style” prior to 

firing the gun; (3) the trial court erred in admitting irrelevant,

improper, and prejudicial character evidence that Appellant held 

the firearm the way an armed robber might hold a firearm; (4) he 

was deprived of an impartial jury because jurors had improper, 

unsupervised contact with the victim’s family during deliberations; 

(5) trial counsel was ineffective for failing to object to irrelevant, 

improper, and prejudicial character evidence; and (6) the cumulative 

effect of the trial court’s evidentiary errors and trial counsel’s 

ineffective assistance unfairly prejudiced Appellant and deprived 

him of his right to due process and a fair trial. For the reasons set 

forth below, we affirm. 

1. Appellant first asserts that the evidence presented at trial 

was insufficient as a matter of constitutional due process to sustain 

his convictions because the State failed to prove beyond a reasonable 

doubt that Appellant was not justified in using self-defense. We 

disagree.
3

The evidence presented at trial showed the following. On the 

morning of August 21, 2019, Appellant, who owned Jazzy Movers,

met to discuss an upcoming job opportunity with a group of 

independent contractors, including Davis, outside Jazzy Movers’ 

headquarters in Albany, Georgia. During this meeting, Appellant 

informed the contractors that the job entailed packing and moving 

furniture at a location in Moultrie, Georgia. Appellant further 

informed the contractors that they would be paid for their services 

on Friday, August 23. The contractors were then transported to the 

job site, which was approximately 30 minutes away. 

Two hours after the contractors began packing furniture, 

Appellant observed Davis sitting on the back of the moving truck. 

When Appellant asked Davis why he was not working, Davis told 

Appellant that “he was tired” because he had been “working all day.” 

Davis then requested that Appellant pay him $20 for the two hours 

he had worked. Appellant reiterated that Davis would be paid on 

Friday, at which point a disagreement ensued. Davis demanded 

that Appellant drive him back to Albany so that he could discuss 
4

receiving his payment with Appellant’s business partners. 

Appellant then drove Davis and one other contractor, Jay Barron, 

back to Jazzy Movers’ headquarters. Barron testified that, during 

the car ride, Davis was angry and cursing but did not threaten 

Appellant. 

When Appellant parked the car in front of Jazzy Movers’

headquarters, Davis refused to get out before Appellant because “he 

didn’t want [Appellant] to drive off.” Appellant and Barron then got 

out of the car, walked into the building, and proceeded onto the 

elevator toward the second floor. Davis entered the building behind 

them but took the stairs. While on the elevator, Appellant told 

Barron to “pull out [his] phone and [start] record[ing], just in case 

something happened.” Appellant testified that he had asked Barron 

to begin recording because he was concerned that Davis might file a 

worker’s compensation claim. Although Appellant believed at the 

time that Barron was recording only audio, Barron in fact recorded 

a video, which was later played for the jury at trial.

The video showed the following. Appellant walked across a 
5

large room into an adjoining smaller room with Davis following him. 

After Davis entered the smaller room, Appellant turned around to 

face him and said, “You will get your check on Friday, man.” For the 

next minute, Appellant and Davis argued back and forth, with Davis 

cursing and Appellant threatening to call security. Appellant then 

walked out into the larger adjoining room with his back facing 

Davis. 

Davis immediately followed him out while stating, “What if I 

f***ing swing on you?” As Davis continued walking in a straight 

line toward the exit, Appellant took two small steps to the right 

while quickly turning to face Davis, pulling out a .40-caliber pistol, 

and racking the slide. Appellant then pointed the pistol at Davis’s 

chest, holding the pistol with the handgrip horizontal to the ground 

and said, “Let’s go then, man.” In response, Davis turned and 

started walking toward Appellant while repeatedly saying, “F***ing 

shoot me, bro.” Meanwhile, Appellant lowered the firearm to his 

side and held out his other hand toward Davis while telling him

several times to “back up.” 
6

Davis stopped walking toward Appellant but continued 

arguing. As Davis briefly turned to look at Barron, he asked 

Appellant, “Did you just pull your f***ing gun on me?” Appellant 

then said Davis’s name, at which point Davis turned back toward 

Appellant, took a half step in Appellant’s direction with his arms 

lowered and his chest puffed up, and asked again, “Did you just pull 

your f***ing . . . ?” Before Davis could finish his question, Appellant 

opened fire on Davis, shooting multiple rounds in quick succession 

as Davis grabbed his chest, turned away, and fell to the floor. 

After falling to the ground, Davis dropped from his hand a 

small, yellow object, which was later identified as a lighter. 

Stepping out of view of the camera, Appellant can be heard on the 

recording calling 9-1-1 and telling the operator, “Sir, I just shot 

somebody.” Following the operator’s directions, Appellant

performed chest compressions on Davis for several minutes, but 

Davis was unresponsive. When officers arrived on the scene and 

asked who shot Davis, Appellant responded, “I did.” Appellant then 

complied with officers’ instructions to turn around and be 
7

handcuffed. Appellant was taken into custody and interviewed by 

Sergeant Chris Hutcherson. 

Sergeant Hutcherson testified that during the interview 

Appellant stated that Davis “had some authority problems” because

Appellant was younger than Davis and that Appellant “felt 

threatened” by Davis because “he knew [Davis] had a record.”

Sergeant Hutcherson further testified that at no point during the 

interview did Appellant indicate that he believed Davis had some 

sort of weapon in his hand.

Taking the stand in his own defense, Appellant testified that 

he had shot Davis in self-defense. Appellant explained that he felt 

threatened when Davis said, “What if I f***ing swing on you,” since 

Appellant’s back was turned when Davis made the comment and 

Appellant knew Davis had a criminal record. Appellant explained 

that, in response to the threat, he pulled out his firearm, “racked a 

round,” and turned toward Davis. But Appellant testified that he 

“never had any intent to use [the firearm].” Appellant further 

testified that, because Davis was “confidently pursuing” him despite 
8

seeing the firearm, Appellant believed Davis had some sort of 

weapon. Appellant explained that he then saw a “flicker of yellow 

and black” in Davis’s hand and assumed it was a box cutter that the 

workers sometimes used to unpack furniture, although the evidence 

later showed that the item in Davis’s hand was actually a lighter. 

Appellant testified that he shot Davis because he was “terrified” that 

Davis would use the box cutter as a weapon against him. However, 

on cross-examination, Appellant stated that, prior to pulling out the 

firearm, he “was not looking at [Davis’s] hands.” 

When the prosecutor asked Appellant why he did not mention 

to Sergeant Hutcherson at any point during his post-arrest 

interview that he believed Davis had a box cutter, Appellant 

responded, “I don’t believe I was in the right state of mind.” The 

prosecutor also questioned Barron about whether Jazzy Movers had 

supplied box cutters for the moving job that morning. Barron 

testified that the company did not provide box cutters and that he 

did not observe Davis or “anybody using box cutters that morning.” 

The medical examiner who performed Davis’s autopsy testified 
9

that Davis’s “cause of death was multiple gunshot wounds” and that 

a “total of eight gunshot wounds” were found in Davis’s body, the 

majority of which struck Davis from behind. The medical examiner 

further testified that Davis’s wounds indicated that he had likely 

“turn[ed] to the right to get out of the way of being shot” and that 

five of the gun shots “could have been lethal” on their own. 

On appeal, Appellant contends that the trial evidence 

established that he acted in self-defense under OCGA § 16-3-21 (a), 

which provides in relevant part that a person is justified in using 

deadly force “if he or she reasonably believes that such force is 

necessary to prevent death or great bodily injury to himself . . . or to 

prevent the commission of a forcible felony.” According to Appellant, 

the trial evidence showed that he reasonably employed “non-lethal” 

force by drawing his firearm in response to Davis’s threat to “swing” 

on him and then reasonably employed deadly force when Davis 

continued to pursue him. Therefore, Appellant argues, the State 

failed to prove beyond a reasonable doubt that Appellant was not 

justified in defending himself. We disagree. 
10

When evaluating the sufficiency of evidence, the proper 

standard of review is whether a rational trier of fact could have 

found the defendant guilty beyond a reasonable doubt. See Jackson

v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)

(1979). This Court will uphold the jury’s verdict “[a]s long as there 

is some competent evidence, even if contradicted, to support each 

fact necessary to make out the State’s case.” Scott v. State, 309 Ga. 

764, 766 (1) (848 SE2d 448) (2020) (citation and punctuation 

omitted). “When a defendant presents evidence that he was justified 

in using deadly force, the State bears the burden of disproving the 

defense beyond a reasonable doubt.” Birdow v. State, 305 Ga. 48, 50 

(1) (823 SE2d 736) (2019). However, it is the role of the jury to 

evaluate the evidence and decide whether the defendant was 

justified in using deadly force in self-defense. See Howard v. State, 

298 Ga. 396, 398 (1) (782 SE2d 255) (2016). In evaluating the 

evidence, “[the] jury is free to reject a defendant’s claim that he acted 

in self-defense.” Id. 

Here, the trial evidence was sufficient to authorize the jury to 
11

conclude that Appellant did not reasonably believe that deadly force 

was necessary to defend himself during the encounter with Davis 

and thus to reject Appellant’s self-defense claim. Specifically, the 

video recording of the incident authorized a jury to find that 

Appellant did not reasonably fear that Davis posed a threat of death 

or great bodily injury either when Davis commented about 

“swinging” at Appellant or when Davis approached him. Instead, 

the jury could have reasonably concluded from the video recording 

that Appellant did not shoot Davis in self-defense because Appellant 

invited a physical encounter with Davis by pulling a gun, pointing it 

at him, and saying, “Let’s go then, man,” and Davis’s conduct in 

approaching Appellant with his arms down and asking if Appellant 

had really pulled a gun on him did not give rise to a reasonable belief 

that Davis was threatening to physically harm Appellant.

Moreover, a rational jury could have disbelieved Appellant’s 

claim of self-defense based on his own trial testimony. See Walker 

v. State, 312 Ga. 232, 235 (1) (862 SE2d 285) (2021) (noting that “the 

jury was entitled to disbelieve [the defendant’s] testimony” in which 
12

he claimed that he fired in self-defense). See also Mims v. State, 310 

Ga. 853, 855 (854 SE2d 742) (2021) (“[T]he defendant’s testimony, 

in which he claimed he was justified or provoked into acting, may 

itself be considered substantive evidence of guilt when disbelieved 

by the jury, as long as some corroborative evidence exists for the 

charged offense.”). This is particularly true here, where Appellant’s 

testimony at trial and his statements during his interview 

immediately after the shooting were inconsistent. Appellant 

testified at trial that he shot Davis because he believed Davis had a 

box cutter in his hand that he intended to use as a weapon against 

Appellant. However, in his post-arrest statement to police he never 

mentioned the box cutter. Thus, the jury was authorized to reject 

Appellant’s claim that he shot Davis in self-defense and to find him 

guilty beyond a reasonable doubt of felony murder and the other 

crimes for which he was convicted. See State v. Newman, 305 Ga. 

792, 795 (1) (827 SE2d 678) (2019) (“[T]he evidence presented at trial 

was sufficient to authorize a rational jury to reject [the defendant’s] 

claim[] of . . . self-defense and to find him guilty beyond a reasonable 
13

doubt of the crimes for which he was convicted.”).

2. Appellant next contends that the trial court erred in 

permitting the prosecutor to refer to Appellant’s manner of holding 

the firearm as “gangster style.” The prosecutor first used the phrase 

“gangster style” during his opening statement, when he told the jury 

that it would see a video in which Davis “turns around and sees a 

gun in his chest, gangster style. Gangster style, turned to the side. 

And then [Appellant] says let’s go then.” Then, during its direct 

examination of Barron, the prosecutor used the phrase “gangster 

style” again. Specifically, after playing Barron’s video for the jury, 

the prosecutor asked Barron, “And you saw a gun pointed gangster 

style in [Davis’s] chest, just like we saw in this video, didn’t you?” 

Barron replied, “Correct.” Defense counsel did not timely object 

during either the State’s opening statement or Barron’s testimony.2 

 2 The day after Barron testified, defense counsel moved “for the Court to 

direct the District Attorney’s Office to stop using any word affiliated with the 

word gang,” arguing that the phrase “gangster style” erroneously implied that

Appellant was “somehow gang-related.” Although the court noted that, when 

it heard the prosecutor use the phrase “gangster style,” it initially understood 

the phrase as “a descriptor” of how Appellant was holding the gun, the court 
14

On appeal, Appellant argues that the trial court erred in 

permitting the prosecutor to use the phrase “gangster style” because 

the phrase was improper character evidence in violation of OCGA §

24-4-404 (a)3, not relevant and therefore inadmissible under OCGA 

§ 24-4-4024, and should have been excluded pursuant to OCGA § 24-

4-4035 because its probative value was substantially outweighed by 

the danger of unfair prejudice. This enumeration of error fails.

As an initial matter, opening statements are not considered 

evidence, and failure to timely object to a remark in opening 

statements waives the issue on appeal. See Phillips v. State, 285 

 

ultimately sustained Appellant’s motion in part. Specifically, the court ruled 

that the State could no longer use the phrase while examining witnesses but 

could use it as a descriptor during closing arguments. However, following the 

court’s ruling, the prosecutor did not use the phrase again either with 

witnesses or in closing arguments. 

3 OCGA § 24-4-404 (a) provides, in pertinent part, “[e]vidence of a 

person’s character or a trait of character shall not be admissible for the purpose 

of proving action in conformity therewith on a particular occasion.”

4 OCGA § 24-4-402 provides, in pertinent part, “[e]vidence which is not 

relevant shall not be admissible.”

5 OCGA § 24-4-403 provides, in pertinent part, “[r]elevant evidence may 

be excluded if its probative value is substantially outweighed by the danger of 

unfair prejudice.” 
15

Ga. 213, 217 (3) (675 SE2d 1) (2009) (“The failure to object to the 

remark [made during the opening statement] . . . constitutes a 

waiver of the issue on appeal.”). Here, because defense counsel 

failed to timely object to the prosecutor’s use of the phrase “gangster 

style” during opening statements, Appellant’s challenge to the 

State’s opening statement was not preserved for review, and plain 

error review does not apply to comments made by lawyers during 

opening statements. See Simmons v. State, 299 Ga. 370, 372-373 (2)

(788 SE2d 494) (2016). 

Although Appellant did not timely object when the prosecutor 

elicited witness testimony that Appellant held the firearm “gangster 

style,” we may review his claim that the trial court erred in 

admitting such testimony for plain error. See OCGA § 24-1-103 (d). 

See also Adams v. State, 306 Ga. 1, 3 (1) (829 SE2d 126) (2019)

(noting that plain error review is available under OCGA § 24-1-103 

(d) for unpreserved challenges to evidentiary rulings). To establish 

plain error, Appellant

must point to an error that was not affirmatively waived, 
16

the error must have been clear and not open to reasonable 

dispute, the error must have affected his substantial 

rights, and the error must have seriously affected the 

fairness, integrity or public reputation of judicial 

proceedings. 

Kemp v. State, 303 Ga. 385, 397-398 (3) (810 SE2d 515) (2018) 

(citation and punctuation omitted). 

Here, assuming without deciding that the trial court clearly 

erred in admitting into evidence Barron’s testimony that Appellant 

held the gun “gangster style,” Appellant cannot satisfy the third 

prong of plain error review, which requires him to demonstrate that

“the outcome of the trial court proceedings likely was affected.”

Hightower v. State, 304 Ga. 755, 759 (2) (b) (822 SE2d 273) (2018) 

(citation and punctuation omitted). To the extent that the phrase 

caused any prejudice, it was unlikely to affect the outcome of the 

trial. The prosecutor only briefly used the phrase “gangster style”

while examining Barron, and nothing introduced into evidence or 

presented in the record suggests that the phrase was used to suggest 

that Appellant was a gang member, that the shooting was gang 

related, or that Appellant had a propensity to commit violence. 
17

Additionally, the jury viewed for itself the video recording of the 

entire incident and heard testimony that Appellant had changed his 

story about why he believed deadly force was necessary. In light of 

the evidence presented, we cannot say that any error in admitting 

into evidence the “gangster style” reference likely affected the 

verdict. See Harris v. State, 302 Ga. 832, 835 (2) (809 SE2d 723) 

(2018) (“[The defendant] has failed to establish that the error 

affected his substantial rights, given the strong evidence of guilt 

against him.”). Accordingly, Appellant has not shown plain error. 

3. Appellant also asserts that the trial court erred in permitting 

a witness to testify that the manner in which Appellant held the 

firearm was akin to the manner in which armed robbers hold a 

firearm. This claim fails.

During his direct examination, Sergeant Hutcherson testified 

that he had “several years of experience in firearms,” was “on SWAT 

Team,” and was currently “in a firearms instructor course.” The 

prosecutor then asked him why a person may “cant” (that is, tilt) a 

firearm sideways, as Appellant had done. Sergeant Hutcherson 
18

responded, “Most people who pull a firearm in that manner are 

either pulling it out to intimidate the other person [or] punk the 

other person.” Sergeant Hutcherson further explained, “You may 

see people pull that firearm in that manner in an armed robbery, 

when they’re trying to rob someone, they’ll cant the firearm in that 

manner.”

Neither the State nor any witnesses referenced armed robbery 

again and defense counsel objected to Sergeant Hutcherson’s

testimony only on the ground that the State was improperly 

bolstering the testimony of a previous witness. Because defense

counsel did not object on any other ground, Appellant did not 

preserve for ordinary appellate review the contentions raised here, 

namely, that the testimony was improper character evidence, 

irrelevant, and inadmissible under Rule 403. See Payne v. State, 

313 Ga. 218, 221 (1) (869 SE2d 395) (2022) (noting that a defendant’s 

evidentiary objection at trial failed to preserve for ordinary 

appellate review a different evidentiary challenge to the same 

testimony). See also Harris v. State, 307 Ga. 657, 663-664 (2) (a) 
19

(837 SE2d 777) (2020) (“[B]ecause [the defendant] did not make a 

specific objection at trial to the admission of his statements on the 

ground now asserted in his appeal, we review these claims only for 

plain error.”). Accordingly, we review Appellant’s contentions only 

for plain error. See OCGA § 24-1-103 (d). Even assuming that the 

armed-robbery reference was improper, Appellant has failed to 

demonstrate that any error in admitting the evidence likely affected 

the outcome of his trial. As explained in Division 2, the evidence 

against Appellant was strong, and the reference to armed robbery 

was brief. Because Appellant has not shown that the armed-robbery 

reference affected his substantial rights by likely affecting the 

outcome of the trial court proceedings, Appellant has not 

demonstrated plain error. See Watson v. State, 303 Ga. 758 (814 

SE2d 396) (2018) (no plain error where it was “not probable that the 

jury would have reached a different verdict had it not heard [the 

challenged evidence]”). 

4. Appellant also asserts that he was deprived of his right to an 

impartial jury under the Sixth Amendment to the United States 
20

Constitution because the jury had improper, unsupervised contact 

with the victim’s family during deliberations. The record shows 

that, during jury deliberations, defense counsel reported to the trial 

court that a group of jurors had been standing “very close” to some 

of Davis’s family members during a break and that deputies, who 

also observed the parties in close proximity, reported that “there was

no communication” between the parties and that “it appeared to be 

purely innocent.” The court indicated that it would take measures 

to prevent the possibility of future interactions between the jury and 

family members, and defense counsel did not request any further 

relief. Because defense counsel did not assert a Sixth Amendment 

claim or seek any relief from the trial court when he discovered the 

allegedly improper jury contact, this Sixth Amendment claim is not 

preserved for appellate review. See Moore v. State, 294 Ga. 450, 451 

(2) (754 SE2d 333) (2014) (concluding that the defendant’s failure to 

“make a contemporaneous motion for a mistrial when it was 

discovered that” three jurors had seen an unredacted reference to 

the defendant’s prior guilty plea “waived review of th[e] issue on 
21

appeal”). 

5. Appellant next asserts that he received constitutionally 

ineffective assistance of counsel because defense counsel failed to 

object to evidence that Appellant held the firearm “gangster style” 

and that canting the firearm sideways was an intimidation tactic 

commonly used by armed robbers. We disagree. 

To succeed on a claim of ineffective assistance of counsel, a 

defendant must show both “that his counsel’s performance was 

professionally deficient and that he suffered prejudice as a result.” 

Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022) 

(citing Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 

LE2d 674) (1984)). To prevail on the deficiency prong, the appellant 

“must demonstrate that the lawyer performed his duties in an 

objectively unreasonable way, considering all the circumstances in 

light of the prevailing professional norms.” Davis v. State, 299 Ga. 

180, 182-183 (2) (787 SE2d 221) (2016). “To prove prejudice, 

Appellant must demonstrate that there is a reasonable probability 

that, but for counsel’s deficiency, the result of the trial would have 
22

been different.” Washington, 313 Ga. at 773 (3). A defendant’s 

failure “to satisfy either prong of the Strickland test is sufficient to 

defeat a claim of ineffective assistance, and it is not incumbent upon 

this Court to examine the other prong.” Smith v. State, 296 Ga. 731, 

733 (2) (770 SE2d 610) (2015).

Here, Appellant has failed to satisfy the prejudice prong of the 

Strickland test. As explained in Divisions 2 and 3, because of the 

strong evidence against him, Appellant is unable to demonstrate a 

reasonable probability of a different result if trial counsel had 

objected to the “gangster style” and “armed robbery” references. See 

Stepp-McCommons v. State, 309 Ga. 400, 407 (4) (a) (845 SE2d 643) 

(2020) (“[T]his Court has equated the prejudice step of the plain 

error standard with the prejudice prong for an ineffective assistance 

of counsel claim.” (citation and punctuation omitted)). Accordingly,

Appellant’s claim of ineffective assistance of counsel fails. 

6. Finally, Appellant claims that the cumulative effect of the 

asserted trial court errors and ineffective assistance of counsel 

violated his right to due process and a fair trial. We disagree.
23

To establish cumulative error a defendant must demonstrate 

that “at least two errors were committed in the course of the trial” 

and “considered together along with the entire record, the multiple 

errors so infected the jury’s deliberation that they denied the 

petitioner a fundamentally fair trial.” State v. Lane, 308 Ga. 10, 21 

(4) (838 SE2d 808) (2020) (citation and punctuation omitted). When 

considering the “cumulative effect of presumed errors by trial 

counsel and the trial court,” this Court “consider[s] collectively the 

prejudicial effect, if any, of trial court errors, along with the 

prejudice caused by any deficient performance of counsel.” Patterson 

v. State, 314 Ga. 167, 181 (5) (875 SE2d 771) (2022) (citation and 

punctuation omitted). Here, Appellant’s claim fails because

Appellant has not demonstrated that the prejudicial effect of the 

assumed trial court errors and ineffective assistance denied him a 

fundamentally fair trial, given the strong evidence against him, 

including the recorded video of the incident and Appellant’s 

inconsistent explanations of the shooting.

Judgment affirmed. All the Justices concur.