296 Ga. 493

FINAL COPY

S14A1442. NWAKANMA v. THE STATE.

S14A1443. FRANCIS v. THE STATE.

BLACKWELL, Justice.

Miracle Nwakanma and Louis Francis were tried together by a Cobb

County jury and convicted of the murder of Justin Brown, among other crimes.

Both Nwakanma and Francis appeal. Nwakanma contends only that he was

denied due process when the prosecution failed to reveal a deal with a material

witness and to correct critical misstatements of fact during that witness’s

testimony. Francis contends that the trial court erred when it failed to sever his

trial from that of his co-defendants, when it limited his questioning of

prospective jurors and refused to strike one of them, when it limited the scope

of his cross-examination of a witness for the State, and when it admitted certain

evidence at trial. Francis also claims that he was denied the effective assistance
of counsel. Upon our review of the record and briefs, we see no error, and we

affirm.

1

1 The crimes were committed on August 2, 2007. Along with Milton Blackledge,

David Hayes, and Muhammed Abdus-Salaam, Nwakanma and Francis were indicted on

December 21, 2007, and each was charged with malice murder, three counts of felony

murder, one count of conspiracy to commit armed robbery,four counts of aggravated assault,

one count of violation of the Georgia Street Gang Terrorism and Prevention Act, and one

count of unlawful possession of a firearm during the commission of a crime. In addition,

Nwakanma and Hayes were charged with unlawful possession of a firearm by a convicted

felon and felonymurder predicated on unlawful possession of a firearmby a convicted felon.

Francis was also charged with possession of cocaine and possession of less than one ounce

of marijuana, but those charges were later put on the dead docket. The prosecution elected

not to proceed with the case against Abdus-Salaam until a subsequent date, and the trial of

the remaining four co-defendants commenced on May 4, 2009. The trial court directed a

verdict of acquittal for each defendant on the charge of aggravated assault upon Charles

Reams, and the jury returned its verdict on May 20, 2009, finding each defendant not guilty

of malice murder and guilty on all the other remaining counts. Nwakanma and Francis each

was sentenced to imprisonment for life for the felony murder of Brown predicated on the

aggravated assault upon him, a concurrent term of imprisonment for ten years for conspiracy

to commit armed robbery, a consecutive term of imprisonment for twenty years for

aggravated assault upon Scott Keller, a consecutive term of imprisonment for ten years for

aggravated assault upon Josh Washington, a concurrent term of imprisonment for fifteen

years for violation of the Georgia Street Gang Terrorism and Prevention Act, and a

consecutive term of imprisonment for five years for unlawful possession of a firearm during

the commission of a crime. Nwakanma was sentenced to an additional concurrent term of

imprisonment for five years for unlawful possession of a firearm by a convicted felon. The

verdict as to the other counts of felony murder was vacated by operation of law, Malcolm v.

State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993), and the remaining aggravated assault

(upon Brown) merged with the felony murder (of Brown). It appears from the record that

Blackledge and Hayes were sentenced in the same way as Nwakanma and Francis, and

Abdus-Salaam later pled guilty to reduced charges and was sentenced to a total of thirty

years, with fifteen to be served in custody. Nwakanma timely filed a motion for new trial on

June 9, 2009. On September 2, 2009, Francis requested leave to file an out-of-time motion

for new trial, that request was granted by consent order on September 4, 2009, and Francis

filed a motion for new trial on October 5, 2009. Nwakanma amended his motion for new trial

on January 20, 2012 and again on March 6, 2012. Francis amended his motion for new trial

on April 25, 2012. The trial court denied Francis’s motion on May 8, 2013, and he timely

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1. Viewed in the light most favorable to the verdict, the evidence shows

that on the evening of August 1, 2007, Nwakanma, Francis, Muhammed AbdusSalaam, Milton Blackledge, and David Hayes — all members of a criminal

street gang known as “MPRC 300” — made plans to rob Dylan Wattecamps,

who recently had been involved in a dispute with Abdus-Salaam over a sale of

marijuana. Early on the morning of August 2, Hayes gave Nwakanma a .380

caliber pistol, and Blackledge drove Nwakanma, Francis, and Abdus-Salaam to

the gated apartment complex in which Wattecamps lived. Hayes drove there

separately in his pickup truck, arranged entry for the other four men through a

resident he knew, parked his truck across the street from the entry gate, and

waited there while the others entered the apartment complex. After parking near

Wattecamps’s apartment, Blackledge and his passengers began to survey the

area on foot. Blackledge and Nwakanma were armed with silver handguns.

Wattecamps was having a party in his third-floor apartment, and when one of

his guests left, she saw the men standing around and recognized Nwakanma.

filed a notice of appeal on May 17, 2013. The trial court denied Nwakanma’s motion on July

17, 2013, and he timely filed a notice of appeal on July 24, 2013. The cases were docketed

in this Court for the September 2014 term. Nwakanma’s case was argued on September 22,

2014, and Francis’s case was submitted for decision on the briefs.

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The four men decided to go forward with their plan, and Nwakanma gave

Hayes’s gun to Francis.

As the four men were preparing to enter the apartment, another guest came

out, and Blackledge hit him in the face. The four men then ran down the stairs

and through the parking lot, pursued by Wattecamps and several of his guests.

Brown, Scott Keller, and Josh Washington, who had just parked and were

walking to the party, heard Wattecamps yell “get them,” and began to chase the

four men. Blackledge and Francis then fired several shots, one of which fatally

wounded Brown in the chest. Nwakanma, Francis, Blackledge, and AbdusSalaam climbed over the apartment complex fence and hurried into Hayes’s

truck. Both Francis and Blackledge claimed to have shot Brown, and Hayes

drove everyone to Abdus-Salaam’s apartment. Six matching .380 caliber shell

casings and three .380 caliber projectiles, including the one that enteredBrown’s

chest, were recovered. All of the shell casings came from the same gun, and two

of the projectiles, including the one that killed Brown, were fired from the same

pistol. Francis and Blackledge admitted to being present at the apartment

complex during the shooting, and while in jail, Francis confessed his

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involvement to another inmate. Abdus-Salaam confessed his role in the crimes

to police and testified at trial.

Neither Nwakanma nor Francis disputes the legal sufficiency of the

evidence. We nevertheless have independently reviewed the evidence to assess

whether it is sufficient to sustain their convictions. Upon that review, we

conclude that the evidence adduced at trial was sufficient to authorize a rational

trier of fact to find beyond a reasonable doubt that Nwakanma and Francis were

guilty of the crimes of which they were convicted. Jackson v. Virginia, 443

U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

2. We now consider Nwakanma’s contention that the prosecution failed

to reveal a deal between the State and Abdus-Salaam and failed to correct

critical misstatements of fact about the existence of a deal during AbdusSalaam’s testimony. It is settled that the State has “a duty to reveal any

agreement, even an informal one, with a witness concerning criminal charges

pending against that witness, and a failure to disclose such an agreement

constitutes a violation of the due process requirements of Brady v. Maryland,

373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).” Wimes v. State, 293 Ga. 361,

362 (2) (744 SE2d 787) (2013). See also Giglio v. United States, 405 U. S. 150,

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154-155 (92 SCt 763, 31 LE2d 104) (1972). In addition, the State may not

knowingly use a witness’s false testimony that he received no promise of

consideration in exchange for his testimony, and the prosecutor’s failure to

correct such testimony that he knows to be false denies the defendant his right

to due process of law. Napue v. Illinois, 360 U. S. 264, 269-270 (79 SCt 1173,

3 LE2d 1217) (1959); Smith v. Zant, 250 Ga. 645, 651 (3) (301 SE2d 32)

(1983).

At a pretrial hearing in this case, both the prosecutor and Abdus-Salaam

confirmed that Abdus-Salaam had no plea agreement or deal with the State but

that he nevertheless would waive his Fifth Amendment rights and testify against

his co-defendants. At trial, Abdus-Salaam testified that there was no plea

bargain or deal for his testimony, that he did not understand any future deal to

depend on how he testified, that he did not expect to gain any benefit or leniency

from his testimony, and that he decided to testify to clear his conscience when

his co-defendants would not admit what they had done. In an effort to show that

Abdus-Salaam did have a deal when he testified, Nwakanma points to the

prosecutor’s testimony at the hearing on the motion for new trial that the lawyer

for Abdus-Salaam continually asked for reduced charges and a lesser sentence

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in exchange for his testimony and that the prosecutor said he would keep an

open mind toward future discussions. But this testimony did not suggest the

existence of even an informal agreement. See Klinect v. State, 269 Ga. 570, 572

(2) (501 SE2d 810) (1998). And the prosecutor indicated that there was no

specific agreement to discuss a possible plea after completion of the codefendants’ trial. See id. “[N]ot everything said to a witness or to his lawyer

must be disclosed. . . . Some promises, agreements, or understandings do not

need to be disclosed, because they are too ambiguous, or too loose or are of too

marginal a benefit to the witness to count.” Tarver v. Hopper, 169 F3d 710, 717

(C) (11

th Cir. 1999).

Abdus-Salaam’s lawyer testified that the only plea offer he had received

— for a sentence of 25 years — had been rejected before the co-defendants’

trial, that there was no deal, that there were no specific conversations with the

prosecution about how the resolution of Abdus-Salaam’s case would be

addressed further after his testimony, and that the lawyer had given AbdusSalaam the admittedly risky advice to testify “blindly,” simply hoping for a

better offer after the co-defendants’ trial. Abdus-Salaam’s testimony on motion

for new trial generally was consistent with that of his lawyer. That Abdus7
Salaam “or his counsel held a hope that testifying in [the co-defendants’] trial

would benefit him later does not show an agreement.” Klinect, 269 Ga. at 572

(2) (citation omitted). See also Tarver, 169 F3d at 717 (C) (“The simple belief

by a defense attorney that his client may be in a better position to negotiate a

reduced penalty should he testify against a codefendant is not an agreement

within the purview of Giglio.” (Citation omitted.)); Hudson v. State, 277 Ga.

581, 586 (5) (591 SE2d 807) (2004) (“That [the witness] may have expected

help for his cooperation does not establish that a deal or agreement was made

between him and the State.” (Citation omitted.)). And “there is no evidence that

the prosecutor encouraged [Abdus-Salaam] or [his] counsel to believe that [he]

would, in fact, benefit from testifying against [Nwakanma].” Varner v. State,

297 Ga. App. 799, 802 (1) (a) (678 SE2d 515) (2009). The fact that after the codefendants’ trial Abdus-Salaam entered a plea agreement does not itself

establish the existence of a deal. See Wimes, 293 Ga. at 363 (2).

Citing the testimony of the prosecutor (as corroborated by AbdusSalaam’s lawyer) that no deal or offer was extended to Abdus-Salaam in

exchange for his testimony, the trial court found that Nwakanma had “failed to

show evidence of any deal.” This finding was not clearly erroneous, but rather

8
“was authorized, and there was no due process violation.” Klinect, 269 Ga. at

572 (2) (citation omitted). See also Wimes, 293 Ga. at 363 (2); Peralta v. State,

276 Ga. 218, 219 (2) (576 SE2d 853) (2003) (“The trial court’s findings of fact

on motion for new trial are upheld unless clearly erroneous.” (Citations

omitted.)). Because the evidence refutes Nwakanma’s claimthat therewas a deal

between Abdus-Salaam and the State, there is likewise no factual basis for

Nwakanma’s claim that Abdus-Salaam’s testimony about his motivation for

testifying was false. See Varner, 297 Ga. App. at 802 (1) (b). To the extent that

Nwakanma is arguing that the State engaged in misconduct by eliciting that

testimony and making arguments about it to the jury, there is “no reason to

conclude that [Abdus-Salaam’s] characterization of [his]subjective motivation

was false or that the prosecutor knew it to be untrue.” Id. Indeed, the prosecutor

testified that, “[i]f you’re asking what [Abdus-Salaam] was thinking, I don’t

know that I could answer that question. But all I can tell you is . . . [w]e told him

there was no plea offer and that it was important for him to tell the truth.” In

addition, all of the co-defendants extensively cross-examined Abdus-Salaam

about his motivations. Under these circumstances, there was no due process

violation. See Varner, 297 Ga. App. at 803 (1) (b).

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3. We turn next to Francis’s contention that the trial court erred when it

denied his pretrial motion to sever his trial from that of his co-defendants. When

several defendants are indicted together for a capital crime, but the State does

not seek the death penalty, whether the defendants are to be tried together or

separately is amatter committed to the sound discretion of the trial court. OCGA

§ 17-8-4 (a). “In ruling on a severance motion, the court should consider: (1) the

likelihood of confusion of the evidence and law; (2) the possibility that evidence

against one defendant may be considered against the other defendant; and (3) the

presence or absence of antagonistic defenses.” Hicks v. State, 295 Ga. 268, 278

(4) (759 SE2d 509) (2014) (citation omitted). And “the burden is on the

defendant requesting the severance to do more than raise the possibility that a

separate trial would give him a better chance of acquittal. He must make a clear

showing that a joint trial would lead to prejudice and a consequent denial of due

process.” Thomas v. State, 293 Ga. 829, 830-831 (2) (750 SE2d 297) (2013)

(citation and punctuation omitted). In this case, we conclude that Francis has

made no “clear showing of prejudice and a consequent denial of due process.”

Id. (punctuation omitted).

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Francis argues that he was prejudiced by a joint trial because of the risk

of confusion when jurors have to keep up with evidence against multiple

defendants on an eighteen-count indictment.Therewas little likelihood of actual

juror confusion in this case, however, because only four defendants were tried

and the law and evidence that applied to each of them were substantially the

same. See Hicks, 295 Ga. at 278 (4). They were jointly tried for almost the same

offenses, which involved the same witnesses, whose credibility the codefendants jointly attacked, and the State’s evidence indicated that they acted

in concert. See Flournoy v. State, 294 Ga. 741, 748 (5) (755 SE2d 777) (2014);

Moon v. State, 288 Ga. 508, 510 (2) (705 SE2d 649) (2011). In addition, the

trial court properly instructed the jury that it was to independently determine the

guilt or innocence of each defendant as to each count, and the court provided

separate verdict forms for each defendant in order to avoid the potential for

confusion. See Griffin v. State, 292 Ga. 321, 326 (7) (737 SE2d 682) (2013).

Francis also argues that he was prejudiced by the admission of similar

transaction evidence against his co-defendants. But such evidence did not

directly implicate Francis, and the trial court gave appropriate limiting

instructions, indicating that the similar transaction evidence could be considered

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only as to each co-defendant against whom it was admitted. See Billings v.

State, 293 Ga. 99, 105 (6) (745 SE2d 583) (2013); Moon, 288 Ga. at 510 (2).

Finally, Francis asserts, without any explanation, that he and his codefendants presented antagonistic defenses. Francis and his co-defendants,

however, did not present any evidence, and their defenses were, for the most

part, consistent, including, for instance, their attacks on the credibility of AbdusSalaam and other prosecution witnesses. See Thomas, 293 Ga. at 831 (2). Even

to the extent that Francis and his co-defendants urged differing defenses, he has

completely failed to show any specific prejudice such that the joint trial denied

him due process.2 See id. at 832 (2); Flournoy, 294 Ga. at 748 (5).

4. Francis also claims that the trial court erred when it refused to allow his

lawyer to ask prospective jurors the following question: “Given that there are

four defendants on trial in this case, do any of you think that you might be

unable to consider and apply the evidence separately to each defendant?” About

the proper scope of voir dire, we must keep in mind that “the single purpose for

2 Our review of the record has revealed no such harm. We note that none of the

co-defendants testified, Blackledge was the only one of them who made a statement, and the

trial court excluded any mention of Francis from Blackledge’s statement. See Griffin, 292

Ga. at 326 (7); Satterfield v. State, 256 Ga. 593, 596-597 (3) (351 SE2d 625) (1987).

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voir dire is the ascertainment of the impartiality of jurors, their ability to treat

the cause on the merits with objectivity and freedom from bias and prior

inclination.” Alexander v. State, 294 Ga. 345, 346-347 (2) (751 SE2d 408)

(2013) (citation and punctuation omitted). “A trial court is vested with a broad

discretion to limit the scope of voir dire with regard to abstract or technical legal

matters.” Starks v. State, 283 Ga. 164, 167 (5) (656 SE2d 518) (2008) (citation

omitted). See also Alexander, 294 Ga. at 347 (2) (“Questions of a technical legal

nature and questions that call for prejudgment are improper in a voir dire

examination.” (Citation omitted.)). Francis’s question about considering and

applying the evidence separately to each co-defendant was “of a technical legal

nature as [it was a] subject[ ] of the instruction by the court at the conclusion of

the trial. [See Division 3, supra.]” Wallace v. State, 248 Ga. 255, 259 (2) (282

SE2d 325) (1981) (where the court at a trial on a special plea of insanity

sustained objections to questions asking each juror “whether he would follow

a charge of the court as to mental competency and whether the juror could set

aside any evidence which might be elicited pertaining to guilt or innocence of

the actual charges”). Accordingly, we find no abuse of the trial court’s broad

discretion to limit the scope of voir dire.

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5. Francis further contends that the trial court erred when it refused to

strike a prospective juror who stated that he was afraid that he could not be fair

and impartial in a case where there was an allegation of gang activity. By

agreement of all parties, the court reporter was not present to take down voir

dire. The court reporter did appear from time to time to take down certain

portions of the proceeding dealing with challenges to certain jurors, but a full

record of the voir dire as to the prospective juror about whomFrancis complains

does not exist. “If counsel raise issues on appeal relating to voir dire, they also

must transcribe the voir dire in order for there to be an appellate review, as an

appellant carries the burden of showing error by the record.” Bryant v. State,

270 Ga. 266, 272 (4), n. 18 (507 SE2d 451) (1998) (citation omitted).

Because voir dire and jury selection were not transcribed in this case, there

is no contemporaneous record as to whether Francis or any of his co-defendants

exercised a peremptory strike as to the prospective juror whom Francis

challenged. And although this prospective juror did not serve on the jury, we

have not located in the record any evidence of how, when, or by whom he was

struck from the panel. It is true that defendants are not required to exhaust their

peremptory strikes as a condition of establishing harm. See Stolte v. Fagan, 291

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Ga. 477, 478 (1) (731 SE2d 653) (2012); Harris v. State, 255 Ga. 464, 465 (2)

(339 SE2d 712) (1986). But if the prospective juror is removed without any use

of peremptory strikes by the defense, as where the State exercises a peremptory

strike to remove the juror, any error in the trial court’s refusal to strike the juror

for cause is harmless because the removal of the juror did not cost the defense

any peremptory strike. Pyburn v. State, 175 Ga. App. 158, 159 (3) (332 SE2d

899) (1985). See also Jenkins v. State, 269 Ga. 282, 291 (13) (498 SE2d 502)

(1998) (even if voir dire allowed a prospective juror to prejudge the case, the

error was “harmless because the State used one of its peremptory challenges to

remove this juror”). Because Francis has not shown from the record that the

prospective juror whom he challenged was struck from the panel through the

exercise of a peremptory strike by the defense rather than the State, Francis has

failed to establish any harm from the trial court’s refusal to strike that juror for

cause.

Moreover, even if the prospective juror at issue was struck by the defense,

Francis has not shown that the trial court erred, as our review is limited to the

portions of voir dire that were transcribed. See Valdez v. State, 310 Ga. App.

274, 278 (2) (712 SE2d 656) (2011). The relevant portion of voir dire that was

15
transcribed — which indicates that the juror’s earlier responses were not

transcribed — shows only that the juror was “worried” and “afraid” that he

could not be fair and impartial as a result of the allegation of gang activity.

Nothing in these transcribed responses compelled a finding that he had formed

an opinion of Francis’s guilt or innocence that was so fixed and definite that he

would be unable to set that opinion aside and to decide the case based on the

evidence and the court’s instructions. See Corza v. State, 273 Ga. 164, 166-167

(3) (539 SE2d 149) (2000). In the absence of a full transcript setting forth all of

the prospective juror’s specific voir dire responses, we cannot say that the trial

court abused its discretion in refusing to excuse the juror for cause. See id.;

Valdez, 310 Ga. App. at 279 (2).

6. Francis also contends that the trial court erred when it forbid crossexamination of Abdus-Salaam about whether the prosecutor had instructed him

to “testify against” the co-defendants. “[D]efense counsel is entitled to a

reasonable cross-examination on the relevant issue of whether a witness

entertained any belief of personal benefit from testifying favorably for the

prosecution.” Manley v. State, 287 Ga. 338, 340 (2) (698 SE2d 301) (2010)

(citation and punctuation omitted). But “the extent of cross-examination with

16
respect to an appropriate subject of inquiry is within the sound discretion of the

trial court, so long as the court does not cut off all inquiry on a subject that the

defense is entitled to cross-examine on.” Brockman v. State, 292 Ga. 707, 725

(11) (739 SE2d 332) (2013) (citation and punctuation omitted). As we have

repeatedly explained, trial courts retain wide latitude to impose reasonable limits

on cross-examination “based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” Manley, 287 Ga. at

340 (2) (citation and punctuation omitted).

In this case, Hayes’s lawyer asked Abdus-Salaam: “[I]sn’t it true, sir, that

your last time in court, the district attorney informed you to testify against these

people; correct?” After Abdus-Salaam answered “Yes,” Hayes’s lawyer asked

whether the prosecutor “told you to testify against David Hayes.” At that point,

the prosecutor objected, the jury was excused, the objection was sustained, and

Francis’s lawyer joined Hayes’s opposition to the State’s objection. The crossexamination at issue was referring to a pretrial hearing in which Abdus-Salaam

waived his Fifth Amendment rights and was asked by the prosecutor whether he

understood that, by such waiver, he “could be called as a witness for the State

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to testify against these four” co-defendants. So the record shows that the

prosecutor neither instructed Abdus-Salaam to testify against the co-defendants

nor implied that he should not testify fully and truthfully. And the phrase

“testify against” was an appropriate and concise way to refer to the testimony

of a witness called by the State. See U. S. Const., Amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses testifying against him . . . .” (Emphasis supplied.)); Ga. Const. of

1983, Art. I, Sec. I, Par. XIV (“Every person charged with an offense against the

laws of this state . . . shall be confronted with the witnesses testifying against

such person.” (Emphasis supplied.)). Accordingly, it appears that the crossexamination of Abdus-Salaam carried with it the potential for confusing or

marginally relevant testimony and that the trial court therefore did not abuse its

discretion to impose reasonable limits on cross-examination without cutting off

all inquiry into the appropriate subject of whether Abdus-Salaam had any belief

that he would personally benefit from testifying for the State.

Moreover, any error in limiting the scope of cross-examination was

harmless. The original question of whether the prosecutor informed AbdusSalaam that he should testify against the co-defendants was answered

18
affirmatively, the jury did not hear the trial court sustain the prosecutor’s

objection, and the court never instructed the jury to disregard Abdus-Salaam’s

affirmative answer. See Freeman v. State, 230 Ga. 85, 86 (1) (195 SE2d 416)

(1973) (“even if the exclusion of the answer of the witness on the objection of

the state was error, it was rendered harmless by the subsequent admission of

testimony to the substantial effect as that sought to be elicited by the question

objected to”); Thomas v. State, 199 Ga. App. 49, 51-52 (8) (404 SE2d 315)

(1991) (“no harm in not allowing the witness to answer the question since she

testified almost immediately afterwards” in a way that answered the prohibited

question). In addition, as we have already noted in Division 2, supra, all four codefendants were permitted to extensively cross-examine Abdus-Salaam about

his truthfulness and his motivation for testifying. See Younger v. State, 288 Ga.

195, 199-200 (3) (702 SE2d 183) (2010); Manley, 287 Ga. at 343 (2).

7. Francis asserts that a notebook admitted into evidence was irrelevant

and prejudicial and amounted to inadmissible hearsay. But his “failure to raise

an objection at trial on hearsay grounds precludes our consideration of his

hearsay objection.” Johnson v. State, 294 Ga. 86, 88 (2) (750 SE2d 347) (2013)

(citation omitted). See also Edwards v. State, 282 Ga. 259, 260 (4) (646 SE2d

19
663) (2007). The notebook was recovered from a bedroom in Nwakanma’s

home and contained handwritten and printed material referring to gangs, as well

as copies of school records bearing Nwakanma’s name. Although the notebook

does not specifically mention the gang to which the co-defendants allegedly

belonged, a detective testified that such a notebook is known as a “gang bible”

or “book of knowledge,” that it contains gang symbols, sayings, and signs, that

it identifies the gang’s enemies, and that there are hybrid gangs in the area with

members who bring with them influences from other traditional gangs.

Accordingly, the notebook was relevant to the count of the indictment alleging

that the defendants were members of a criminal street gang. See Sifuentes v.

State, 293 Ga. 441, 445 (3) (746 SE2d 127) (2013). And the trial court did not

abuse its discretion when it found that any prejudicial effect of the evidence was

outweighed by its probative value. See id.; Wornum v. State, 285 Ga. 168, 169

(2) (674 SE2d 876) (2009). The fact that the notebook does not specifically

name the co-defendants’ alleged gang goes to its evidentiary weight and does

not render it inadmissible. See Sifuentes, 293 Ga. at 445 (3).

8. Last, we turn to Francis’s contention that his trial lawyers were

ineffective because they failed to object to the prosecutor’s disparaging remarks

20
about them during closing argument. Although Francis’s amended motion for

new trial asserted that the prosecutor in his closing argument improperly

denigrated Francis’s lawyers, the only ineffectiveness claims raised in the

motion were that the lawyers failed to have the entire voir dire recorded and that

the closing argument on behalf of Francis impaired his defense. At the hearing

on the motion for new trial, one of Francis’s lawyers testified but was not

questioned about the prosecutor’s closing argument, only about closing

argument for the defense, and Francis’s appellate lawyer presented no argument

about the failure to object to the prosecutor’s closing argument. In its order

denying the motion for new trial, the trial court unsurprisingly said nothing

about the ineffectiveness claim now raised on appeal. Because Francis did not

raise this claim in his amended motion for new trial or at the hearing and did not

obtain a ruling on it by the trial court, he did not preserve the claim for review

on appeal. See Jones v. State, 294 Ga. 501, 503 (2) (755 SE2d 131) (2014);

Cowart v. State, 294 Ga. 333, 337-338 (3) (751 SE2d 399) (2013).

Judgments affirmed. All the Justices concur.

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Decided January 20, 2015 – Reconsideration denied February 16, 2015.

Murder. Cobb Superior Court. Before Judge Ingram.

Brian Steel, for appellant (case no. S14A1442).

Edwin J. Wilson, for appellant (case no. S14A1443).

D. Victor Reynolds, District Attorney, Jesse D. Evans, Benjamin M. First,

Amelia G. Pray, Assistant District Attorneys, Samuel S. Olens, Attorney

General, PatriciaB. AttawayBurton, Deputy Attorney General, Paula K. Smith,

Senior Assistant Attorney General, Jason M. Rea, Assistant Attorney General,

for appellee.

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