Ash v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

No. S26A0975

Richard Ash

v.

The State

On Appeal from the Superior Court of Fulton County

No. 18SC164136

Decided: September 9, 2026

LAGRUA, Justice.

Appellant Richard Ash appeals his convictions for malice murder and other crimes related to the shooting death of Shanna Smith. 1 On appeal, Ash argues that his convictions should be

1 Smith was shot and killed on August 4, 2016. On December 28, 2018, a Fulton County grand jury indicted Ash, Matthew Larkins, Dejon Fuller, Travon Mack, and Darien Sherry for the following counts: participation in criminal street gang activity (Count 1); malice murder (Count 2); felony murder predicated on aggravated assault with a deadly weapon (Count 3); felony murder predicated on criminal damage to property (Count 4); felony murder predicated on participation in criminal street gang activity (Count 5); felony murder predicated on possession of a firearm by a convicted felon—as to Ash (Count 6); felony murder predicated on possession of a firearm by a first offender probationer—as to Fuller (Count 7); felony murder predicated on possession of a firearm by a convicted felon—as to Larkins (Count 8); felony murder predicated on possession of a firearm by a convicted felon—as to Mack (Count 9); aggravated assault with a deadly weapon (Count 10); criminal damage to property (Count 11); two counts of possession of a firearm during the commission of a felony (Counts 12 and 13); possession of a firearm by a convicted felon—as to Ash (Count 14); possession of a firearm by a first offender

reversed based on the following contentions: (1) the evidence was insufficient to support the convictions in this case because the State failed to adequately corroborate the testimony of accomplice Dejon Fuller; and (2) the trial court abused its discretion in denying Ash’s plea in bar. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdicts, the evidence presented at trial showed that, around 5:30 a.m. on August 4, 2016, Smith was shot and killed inside her vehicle as she drove away from a co-worker’s house on Hadlock Street in Fulton County. According to that co-worker, Dejuanzell Banks, Smith gave Banks a ride home after their overnight shift ended at 4:30 a.m. When Smith and Banks arrived at Banks’s house,

probationer—as to Fuller (Count 15); possession of a firearm by a convicted felon—as to Larkins (Count 16); and possession of a firearm by a convicted felon—as to Mack (Count 17).

Fuller pleaded guilty to a reduced charge of voluntary manslaughter and testified for the State at trial. Before trial, Sherry’s case was severed, and Count 1 (participation in criminal street gang activity) and Count 5 (felony murder predicated on participation in criminal street gang activity) were bifurcated and later nolle prossed by the State. Ash, Larkins, and Mack were then jointly tried from October 15 to October 23, 2019. Although the jury found Larkins and Mack guilty on all counts, the jury was unable to reach a verdict on the charges against Ash, and the trial court discharged the jury and declared a mistrial. We recently affirmed co-defendant Larkins’s convictions in Larkins v. State, 324 Ga. 127 (2026), and co-defendant Mack’s appeal of his convictions were recently docketed in this Court. See Mack v. State, S27A0097.

Ash was retried from December 3 to 10, 2019, and the jury found Ash guilty on all counts. The trial court sentenced Ash to life in prison on the malice murder count (Count 2), plus a total of 25 consecutive years to serve on Counts 11, 12, 13, and 14. The remaining counts merged or were vacated by operation of law. Ash filed a timely motion for new trial, which he later amended through new counsel on August 18, 2025. After holding an evidentiary hearing on the motion for new trial, the trial court denied the motion on August 25, 2025. Ash filed a timely notice of appeal on September 4, 2025. This case was docketed in this Court to the April 2026 term and submitted for a decision on the briefs.

they sat in her car—a dark green BMW sedan—for a few minutes, and Banks saw two cars drive around the corner of Leslie Avenue onto Hadlock Street in “a fast kind of way”—“like a small little car chase or something.” Banks testified that one of the cars was a red Chevrolet Impala and the other car was a gold SUV. Banks soon exited Smith’s car, and Smith drove away towards Leslie Avenue. As Banks turned and entered his house, he “immediately” heard “a lot” of “gunshots”—what sounded like “multiple” guns “going off all at one time.” Worried that Smith could have been struck, Banks tried numerous times to reach Smith on her cell phone, but he got no response. Banks then called 911. Several of Banks’s neighbors also heard gunshots around 5:30 a.m. on August 4 and called 911. 2 One neighbor testified that she looked out the window and saw a group of men running across her yard, one of whom was holding a “large weapon” and was shooting at a car driving down Hadlock Street towards Leslie Avenue. She then saw the car swerve “down the embankment” behind her house on Leslie Avenue.

An Atlanta Police Department officer responded to the scene and discovered Smith’s BMW in a ditch on Leslie Avenue with Smith, unresponsive, in the driver’s seat. The medical examiner testified that Smith died from a gunshot wound to the back of her head, which exited through her left temple.

Officers collected numerous shell casings at the scene, including three 9mm shell casings from a single firearm, two .25- caliber shell casings from a single firearm, eight .45-caliber shell

2 Several neighbors also testified that they heard “a lot of gunshots” earlier that morning around 12:00 a.m. and called 911, but when officers responded to the calls, they did not see “anything or anyone” and “left the area.”

casings from a single firearm, five .380-caliber shell casings from a single firearm, 18 .223-caliber shell casings from a single firearm, and seven .223-caliber shell casings from a single firearm. Officers also located a “flip cell phone” in the roadway “close to where some shell casings were.” Atlanta Police Detective Summer Benton, the lead detective in this case, testified that she looked through the cell phone, “hoping to find the person who owned [it],” and she called the phone number appearing most frequently in the call history. Karemnescia Jones answered Detective Benton’s call, and based on that phone call, Detective Benton established that the cell phone belonged to Jones’s boyfriend, Dejon Fuller, one of Ash’s co-defendants. Detective Benton spoke briefly with Fuller on the evening of August 4, and Fuller claimed that he had lost the cell phone at “a club a couple days prior while dancing” and did not know anything about Smith’s shooting.

Detective Benton secured a search warrant to “search the contents” of Fuller’s cell phone and to obtain the corresponding cell phone records. According to Detective Benton, after searching the cell phone and reviewing the cell phone records, investigators “realized that the same numbers were being called both before and after [Fuller said he] lost the phone up until he actually did lose the phone on the murder scene,” so they “knew that Mr. Fuller was actually in possession of the phone at the time” of Smith’s shooting. Detective Benton then secured search warrants to obtain the subscriber information and cell phone records for the phone numbers Fuller had been calling around the time of Smith’s shooting because, “[b]ased off the amount of shell casings,” she knew there were “more than a few shooters.”

Detective Benton attempted to contact Jones again in hopes of getting her help in locating and communicating with Fuller, but Jones would not return Detective Benton’s calls or agree to meet with her. Eventually, one of the investigators served Jones with a grand jury subpoena for an appearance on February 21, 2017. When Jones arrived at the courthouse on February 21, Fuller accompanied her, and he was detained and transported to the Atlanta Police Department for an interview. Prior to the interview, Fuller was advised of his Miranda rights, 3 which he agreed to waive.

During Fuller’s interview, Fuller admitted to being present for Smith’s shooting, and he disclosed the identity of several additional suspects in the shooting, including Ash, Matthew Larkins, Travon Mack, and Darien Sherry, for whom arrest warrants were issued. Ash was arrested on March 15, 2017, and his cell phone was collected at that time. When officers first attempted to arrest Sherry, he “fled from the officers on foot,” after abandoning the red Chevrolet Impala he had been driving. Detective Benton secured a search warrant for the Impala, and it was towed to police headquarters. Investigators later noted “bullet defects” on the exterior of the Impala, which were “covered by duct tape.”

After securing search warrants, investigators conducted a data extraction of Ash’s cell phone and obtained the corresponding cell phone records. 4 During the cell phone search, an investigator noted that the location services for Ash’s cell phone were turned on; Ash’s cell phone contained Instagram profiles for Larkins and Sherry; and Ash had contact phone numbers saved in his cell phone for Fuller, Larkins, and Cortez

3 See Miranda v. Arizona, 384 US 436 (1966).

4 Investigators also obtained search warrants for and conducted searches of the cell phones records for the cell phones belonging to Larkins, Mack, and Sherry.

Thompson, who was shot and injured a few hours prior to Smith’s shooting at 7265 Ginger Court—the house where Larkins resided. 5

Fuller testified as a State’s witness at trial and explained that he was neighborhood friends with Ash, Larkins, Mack, and Sherry and spent a lot of time at Larkins’s house at 7265 Ginger Court. Fuller testified that, on the night of August 3, 2016, he was at a friend’s apartment when Ash, Mack, and Sherry came over to the apartment and told Fuller that Thompson had been shot earlier that evening at Larkins’s house. According to Fuller, Ash told him that, a few hours after Thompson was shot, the group learned the name of Thompson’s shooter, as well as an address where the shooter “hung out.” The group then drove to that address and saw a car they believed to be the shooter’s, which they “shot at.” After telling Fuller about these shootings, Ash, Mack, and Sherry left the apartment. Around 3:00 a.m. on August 4, Fuller met up with Ash, Larkins, Mack, and Sherry again at another mutual friend’s house in Riverdale. Fuller testified that “[e]verybody had weapons,” and the group decided to return to the same neighborhood to find the shooter “for [their] own retaliation purposes.”

According to Fuller, around 5:00 a.m. on August 4, the group traveled in tandem to the area near the intersection of Hadlock Street and Leslie Avenue, where they believed Thompson’s shooter would be. Sherry drove his Impala with Mack

5 A Clayton County police officer testified that he was dispatched to 7265 Ginger Court around 9:00 p.m. on August 3, 2016, to investigate Thompson’s shooting, and another police officer testified that he was dispatched to the hospital the same night to question Thompson about the shooting. The second officer testified that Thompson could not be interviewed because he was sedated, and the officer learned from hospital staff that Thompson had been “dropped off [at the hospital] by a red Chevy.”

as a passenger, and Ash drove his car—a “gold … sedan, a four- door”—with Fuller and Larkins as passengers. Fuller testified that everyone in the group was armed, including Ash, who had a 9mm handgun that Fuller saw “inside the car on the way to the neighborhood” when Ash showed it to him. When the group arrived in the neighborhood, they “drove around … maybe once or twice” and then parked near the corner of Leslie Avenue and Hadlock Street, remaining in their cars. Shortly thereafter, the group saw a car moving in their direction. Fuller was on the phone with Sherry at the time, and Sherry said, “Here they come. Here they come.” The group started exiting their cars—armed—and Fuller saw Mack and Sherry “fire the first shots,” followed by a “barrage of shots” from the group. Fuller—who was armed with two guns—attempted to shoot, but “neither one of [his] weapons fired.” Immediately after the shooting, Fuller saw the car they had been shooting at “swerve[] off the road and c[o]me to a stop” on Leslie Avenue. The group got back into their cars, and as they drove away, Fuller looked over and observed “a female motionless in the car.”

Fuller testified that, shortly after leaving the scene, he realized he had dropped his cell phone, but he did not know when or where. Fuller testified that, later that day, Jones told him that the Atlanta Police Department had his cell phone, and when Fuller was interviewed by detectives in February 2017, he initially lied and said he had lost his cell phone before the shooting.

Atlanta Police Detective Kevin Leonpacher, who was tendered as an expert at trial in the field of “historical cell phone data,” “cell tower analysis,” and “phone data analysis,” testified that he received phone records from the cellular service providers for the cell phones of Ash, Fuller, Larkins, Mack, and Sherry pursuant to a search warrant. Detective Leonpacher testified that he used those cell phone records to analyze the cell phone data for Ash’s and his co-defendants’ cell phones to “plot the movement of” and determine the location of those cell phones during the pertinent timeframe from the evening of August 3 to the late morning hours of August 4, 2016. According to Detective Leonpacher, the points of interest in this case were a location in Riverdale and a location in southwest Atlanta near the intersection of Hadlock Street and Leslie Avenue where Smith’s shooting occurred. According to Detective Leonpacher, between 4:30 a.m. and 5:30 a.m. on August 4, Ash’s cell phone “travel[ed] consistently along with the devices … associated with Mr. Fuller, Mr. Mack, Mr. Sherry, and Mr. Larkins” from Riverdale to “the area of Hadlock Street generally.”

Specifically, with respect to Ash’s cell phone, Detective Leonpacher determined that, based on his review of Ash’s cell phone records, cell phone data, cell networks, cell tower information, and the location and search history records for Ash’s Google account, 6 Ash’s cell phone was near the intersection of Hadlock Street and Leslie Avenue at 12:06 a.m. on August 4. The user of Ash’s cell phone then communicated with several people, including some of Ash’s co-defendants, before traveling back to Riverdale. Ash’s cell phone remained in the Riverdale area until about 4:30 a.m. on August 4, when it started moving west and north—consistent with “[d]riving or traveling in a vehicle”—and at 5:30 a.m., Ash’s cell phone was in “the general geographic area of 1762 Hadlock” close to “the area of the crime scene.” At 5:37 a.m., the user of Ash’s cell phone conducted a Google search for directions and navigation from the Hadlock Street area to Ash’s

6 Ash’s Google account, including his gmail account, and his location services were activated on his cell phone.

residence in Riverdale, 7 and at 5:38 a.m., the user of Ash’s cell phone placed a call near the intersection of Hadlock Street and Leslie Avenue while in close proximity to the other defendants’ cell phones. At 10:08 p.m. on August 4, the user of Ash’s cell phone conducted a Google search for information related to a shooting on Hadlock Street.

Ash testified in his own defense at trial and also presented the testimony of his younger brother, Tristahn Ash. Ash testified that he did not personally know Fuller, Larkins, Mack, or Sherry, but he had been to Larkins’s house on “numerous occasions to buy weed.” Ash testified that, on the night of August 3, he went to a party at Larkins’s house and was at the house “smok[ing] weed” and “listen[ing] to music” from about “9:00, 10:00, 11:00” p.m. until around 12:00 or 1:00 a.m. on the morning of August 4, when Fuller agreed to give Ash a ride to his girlfriend’s house in Riverdale. Ash testified that Fuller ended up dropping him off before they reached the house, and Ash walked “the rest of the way.” According to Ash, when he arrived at his girlfriend’s house, he realized he did not have his cell phone, but he knew he had his phone in his “back pocket right before [he] got in the car with Mr. Fuller,” so his “phone had to have been in the car.” Ash testified that he walked back to Larkins’s house and spoke to “a tall dude,” who called Fuller for him, and when Ash spoke to Fuller, Fuller looked in the back of his car and found Ash’s cell phone. Ash testified that he asked Fuller to give his cell phone to his brother Tristahn—who was good friends with Fuller—and, according to Ash and Tristahn, Tristahn picked up the cell phone from Fuller and returned it to Ash during “the early morning hours” of August 4.

7 Ash’s driver’s license was admitted into evidence and reflected that his residential address was the same one used in this navigation search.

During the State’s cross-examination of Ash, the prosecutor asked Ash whether he recalled the Clayton County Police Department responding to Thompson’s shooting at Larkins’s house around 9:00 p.m. on August 3, given that Ash testified he had been at Larkins’s house around that same time. Ash testified that he did not see the police or know anything about Thompson’s shooting. Additionally, on cross-examination, Ash could not explain why his cell phone reflected that it had been used to search for directions from the crime scene to his house in Riverdale on the morning of August 4 or why searches were made on his cell phone for information regarding Smith’s shooting on the night of August 4, other than testifying that he did not conduct those searches. And Ash conceded that, during his interview with law enforcement following his arrest, he did not mention that, on the night of August 3, he was at a party at Larkins’s house, he had gotten a ride home with Fuller, and he dropped his cell phone in Fuller’s car and was without it until the following morning.

1. In his first enumeration of error, Ash contends that the evidence presented at trial was constitutionally insufficient under Jackson v. Virginia, 443 US 307, 319 (1979), to support his convictions, and he also argues that the State failed to adequately corroborate the testimony of accomplice Fuller under OCGA § 24- 14-8. In support of these contentions, Ash asserts that Fuller was the only witness who implicated Ash in these crimes, and when Ash testified, he “denied being anywhere near the crime scene.” Ash further asserts that, while the State “presented [cell phone] records and cell phone tower location maps to imply” that Ash “must have been with the other co-defendants during the murder,” Ash testified at trial “that his cell phone had been dropped in co-defendant Fuller’s car earlier on the night in question and was not returned until later the next morning,” which was substantiated by the trial testimony of Ash’s brother, Tristahn. But the evidence presented in this case was constitutionally sufficient under Jackson, and Fuller’s testimony was sufficiently corroborated under OCGA § 24-14-8, so this enumeration of error fails. See Stitts v. State, 323 Ga. 109, 112– 13 (2025) (noting that, while “[w]e have held that a sufficiency analysis under federal due process is different from and does not include the state requirement imposed by OCGA § 24-14-8[,] … even assuming that federal due process did include the OCGA § 24-14-8 requirement, … that requirement has been satisfied here”). When considering an appellant’s claim that the evidence was insufficient as a matter of federal due process under Jackson, “our review is limited to an evaluation of whether the trial evidence, when viewed in the light most favorable to the verdicts, is sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.” Stitts, 323 Ga. at 112 (quotation marks omitted). “We put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.” Id. (quotation marks omitted).

Here, the evidence was sufficient as a matter of constitutional due process for the jury to find Ash guilty of the crimes of which he was convicted. See Stitts, 323 Ga. at 112. That evidence showed that (1) Ash associated with and/or was friends with Thompson, Fuller, Larkins, Mack, and Sherry; (2) by his own testimony, Ash was present at Larkins’s residence on the night of August 3, 2016, around the time Thompson was shot—a timeframe that was established by the testimony of police officers who responded to the scene and to the hospital where Thompson was being treated for his injuries; (3) Fuller met with Ash, Larkins, Mack, and Sherry during the early morning hours of August 4 and reached an agreement—of which Fuller was a part—to go to the Hadlock Street area and look for Thompson’s shooter in retaliation for Thompson’s shooting; (4) Fuller identified Ash as one of the shooters; (5) shell casings consistent with the type of firearm Ash carried were collected at the scene; and (6) Ash’s cell phone records and cell site location information placed his cell phone at the crime scene when Smith was murdered.

As to Ash’s statutory claim, when considering an appellant’s claim that the State failed to adequately corroborate the testimony of an accomplice as a matter of Georgia statutory law, we look to OCGA § 24-14-8, which provides, in pertinent part, that [t]he testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including … felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.

This Court has interpreted OCGA § 24-14-8 to mean that, “where the only witness implicating the defendant is an accomplice, testimony by the accomplice must be corroborated by other evidence implicating the defendant.” Bowdery v. State, 321 Ga. 890, 896 (2025) (cleaned up). This other evidence must “corroborate both the identity of the defendant and the fact of his participation in the crime” and must “either directly connect the defendant with the crime or justify an inference that he is guilty.” Id. (quotation marks omitted). Additionally, corroborating evidence may be “circumstantial, slight, and need not be of itself sufficient to warrant a conviction of the crime charged,” Head v. State, 316 Ga. 406, 411 (2023), nor must this evidence “match the testimony of the accomplice in every detail.” Bowdery, 321 Ga. at 896 (cleaned up). “The sufficiency of corroboration is a matter for the jury to decide, and in considering sufficiency, we must consider all of the evidence that was admitted by the trial court.” Larkins v. State, 324 Ga. 127, 133 (2026) (quotation marks omitted). See also Bowdery, 321 Ga. at 896 (explaining that, “once the State adduces such evidence, it is peculiarly a matter for the jury to determine whether the evidence sufficiently corroborates the accomplice’s testimony and warrants a conviction” (cleaned up)). With these principles in mind, we conclude that the evidence presented by the State satisfied the statutory requirement of OCGA § 24-14-8, as it provided at least slight corroboration of Fuller’s testimony identifying Ash as a participant in the crimes. That evidence established that, around 12:00 a.m. on August 4, 2016, Ash’s cell phone was located near the intersection of Hadlock Street and Leslie Avenue—the same area where Smith was shot several hours later. Ash’s cell phone then traveled back to Riverdale, where Ash and several of his co- defendants resided, and during that timeframe, the user of Ash’s cell phone communicated with the cell phone numbers belonging to some of his co-defendants. Between 4:30 a.m. and 5:30 a.m. on August 4, Ash’s cell phone “travel[ed] consistently along with the devices … associated with” Fuller, Larkins, Mack, and Sherry from Riverdale to “the area of Hadlock Street generally.” And, at 5:30 a.m., Ash’s cell phone was in “the general geographic area of 1762 Hadlock” close to “the area of the crime scene.” At 5:37 a.m., the user of Ash’s cell phone conducted a Google search for directions and navigation from the crime scene area to Ash’s residence in Riverdale, and at 5:38 a.m., the user of Ash’s cell phone placed an outgoing call while located in the crime scene area. At 10:08 p.m. on August 4, the user of Ash’s cell phone conducted a Google search for information related to a shooting on Hadlock Street.

Additionally, Fuller testified that, on the morning of Smith’s shooting, Ash was armed with a 9mm handgun that Ash showed Fuller “inside the car on the way to the neighborhood.” Among the ballistics evidence collected at the crime scene were three 9mm shell casings, which the State’s firearms expert determined were all fired from the same firearm. Fuller also testified that Ash drove his “four-door” “gold … sedan” to the crime scene, and this testimony was substantiated by Smith’s co- worker, Banks, who testified that, immediately prior to the shooting, he saw a red Chevrolet Impala—which Sherry was known to drive—and a gold car chasing each other through the neighborhood.

Ash also testified on his own behalf at trial, and although Ash said that he did not personally know Fuller, Larkins, Mack, or Sherry, Ash’s cell phone contained contact phone numbers for Fuller, Larkins, and Thompson, whose shooting prompted the group to travel to the Hadlock Street area on the morning of August 4 to seek out Thompson’s shooter, and Ash’s Instagram account on his cell phone reflected that he followed the Instagram profiles of Larkins and Sherry. Moreover, Ash admitted that he had been to Larkins’s house at 7265 Ginger Court in Riverdale— the house where Thompson was shot—on “numerous occasions to buy weed,” including the night of August 3 when Thompson was shot. While Ash also testified that he did not know anything about Thompson’s shooting and did not have possession of his cell phone during the overnight hours of August 3 and 4, the jury was entitled to disbelieve that testimony and to consider it as substantive evidence of Ash’s guilt given the conflicts between this testimony and the evidence discussed above. See, e.g., State v. Green, 321 Ga. 204, 214 (2025) (explaining that “jurors [are] authorized to consider their disbelief in [a defendant’s] testimony – and the inconsistencies between it and the eyewitness accounts of others – as substantive evidence of his guilt” where “some corroborative evidence exists for the charged offense”); Maynor v. State, 317 Ga. 492, 498 (2023).

Finally, the jury was properly instructed on the requirement that an accomplice’s testimony be corroborated—an instruction Ash does not challenge on appeal—and having received that instruction, the jury was the proper arbiter of the weight afforded to this other evidence. See Head, 316 Ga. at 413.

Accordingly, while the corroborating evidence may not have individually corroborated every detail of Fuller’s testimony, we conclude that, taken together, the evidence authorized the jury to conclude that the accomplice testimony was properly corroborated, see Bowdery, 321 Ga. at 898. See also Barber v. State, 314 Ga. 759, 764 (2022) (“The sufficiency of the corroboration is a matter for the jury to decide.”). Additionally, the evidence detailed above was constitutionally sufficient as a matter of federal due process to authorize the jury to find Ash “guilty beyond a reasonable doubt of the crimes of which he was convicted.” Stitts, 323 Ga. at 112. As such, this claim fails.

2. In his second and final enumeration of error, Ash contends that the trial court abused its discretion by denying Ash’s plea in bar, which he filed before his second trial to argue that the trial court erred by declaring a mistrial in his first trial after the jury indicated it was deadlocked and unable to reach a verdict. In support of this contention, Ash argues that the “manifest necessity to declare a mistrial” was not established at the first trial because “[n]o attempt was made by the trial court to ascertain if there had been any movement in the previous hours; if the jurors thought that they were hopelessly deadlocked; or if they thought that any additional time would result in a verdict.” Ash further argues that “[t]his lack of effort to allow the original jury to decide [Ash’s] case did not comport with [d]ue [p]rocess,” and “double jeopardy principles should have barred a second trial.” Because Ash remained silent when the trial court effectively declared a mistrial in his first trial, he consented to the mistrial, and this claim fails. 8 See State v. Johnson, 267 Ga. 305, 306 (1996).

The record from the first trial reflects that, after several hours of deliberation, the jury sent a note to the trial court, asking how to proceed if they were undecided on one of the defendants. After discussing the jury’s inquiry with the parties, the trial court instructed the jury that, “[a]s to the Defendant upon whom the Jury is undecided, please keep working.” After several more hours of deliberation, the jury submitted another note to the trial court, stating that they were “unable to agree on one of the Defendants”

8 The record reflects that the trial court functionally declared a mistrial after the jury was unable to reach a unanimous verdict as to Ash. See OCGA § 16-1-8(e)(2)(C) (providing that a former prosecution is not barred where the prosecution was properly terminated because “[t]he jury is unable to agree upon a verdict”); Johnson v. Johnson, 281 Ga. 666, 667 (2007) (noting that “[t]here is no magic in nomenclature,” and it is the substance and function of what the trial court did that controls, not the wording or label the trial court attached to it). And, during the plea in bar hearing, Ash acknowledged that the trial court effectively declared a mistrial at the first trial and that he “agreed with” the trial court’s decision to do so.

and felt it was “no longer productive to keep deliberating.” The trial court then brought the jury into the courtroom and gave them an Allen 9 charge, instructing them to continue deliberating. See Young v. State, 312 Ga. 71, 120 (2021) (noting that, when a jury is deadlocked, the trial court may properly give this Court’s “suggested modified Allen charge for such circumstances”). After deliberating for several more hours, the jury submitted a third note to the trial court, advising that they were “looking at the same information and evidence and c[ould]n’t reach a conclusion,” and that they were “not engaging or debating … and [we]re divided.” The trial court advised counsel that it would “receive whatever verdicts the Jury now ha[d]” and “deal with the Defendant upon whom they are deadlocked at the appropriate time.” The parties, including Ash, indicated they had no objections to proceeding in this manner.

After receiving the jury’s unanimous guilty verdicts against Larkins and Mack, the jury was briefly excused, and the trial court effectively declared a mistrial, stating on the record: “[A]s to Defendant Richard Ash, the Jury was not able to reach a verdict and returned a blank verdict form; that matter remains before the Court and will remain in no bond status until such time as the Court has been advised as to the State’s intentions regarding retrial.” Ash voiced no objection. The trial court then gave its final instructions to and discharged the jury.

On December 2, 2019, the day before Ash’s second trial was scheduled to begin, Ash filed a plea in bar, asserting that the trial court erred in declaring a mistrial after the jury indicated it was deadlocked during Ash’s first trial because “there was not a manifest necessity” and because the trial court “did not determine

9 See Allen v. United States, 164 US 492 (1896).

or question the jury as to the break down regarding deliberations prior to declaring a mistrial.” Ash thus moved the trial court to bar any further prosecution against him and to dismiss the indictment. On December 3—the first morning of Ash’s second trial—the trial court heard arguments on Ash’s plea in bar. During that hearing, Ash asserted that, because there was not a manifest necessity in declaring a mistrial, the tribunal should have been retained until a verdict was reached, but he acknowledged that, when the trial court declared a mistrial at the first trial, Ash did not object and “in fact agreed with Your Honor declaring a mistrial.” The trial court denied Ash’s plea in bar, concluding that there was a “manifest necessity” to declare a mistrial in Ash’s first trial because the jurors’ votes were split; “the notes the [c]ourt received from the jury made it very clear that there were no additional deliberations that would assist them in reaching a unanimous verdict as to [Ash]”; and, after receiving multiple instructions and deliberating for several more hours, the jury remained “hopelessly deadlocked.” Ash’s second trial commenced about six weeks later.

This Court has explained that, generally, “once a jury has been sworn and impaneled and jeopardy has attached, the power of the trial judge to interrupt the proceedings on his own … by declaring a mistrial is subject to strict limitations.” Johnson, 267 Ga. at 306 (quotation marks omitted). But, when a defendant “consents to a mistrial, jeopardy continues and a retrial is allowed,” Medina v. State, 309 Ga. 432, 435 (2020), and a defendant “may not thereafter utilize the mistrial as the basis of a plea of double jeopardy,” Johnson, 267 Ga. at 306. “Consent to the grant of a mistrial can be express or implied.” Id.

In Ash’s first trial, he remained silent and did not object when the trial court functionally declared a mistrial because the jury was unable to reach a verdict as to Ash. Moreover, during the plea in bar hearing, Ash conceded that, when the trial court declared a mistrial at the first trial, he “agreed with … declaring a mistrial.” Whether that agreement was expressly stated at the first trial or not, by remaining silent and not objecting, Ash “impliedly consented to the declaration of a mistrial” and later objecting in a plea in bar does not change or invalidate his earlier consent. Johnson, 267 Ga. at 306.

Accordingly, because Ash consented to the mistrial in his first trial when the jury was unable to reach a unanimous verdict, he could not later “utilize the mistrial as the basis of a plea of double jeopardy” to bar his second trial. Johnson, 267 Ga. at 306. And, thus, this second enumeration of error also fails.

Judgment affirmed. All the Justices concur.