Jackson v. State ( 2021 )

In the Supreme Court of Georgia
Decided: June 1, 2021
S21A0132. JACKSON v. THE STATE.
LAGRUA, Justice.
Appellant Philemon Shark Jackson was convicted of malice
murder and other crimes in connection with the shooting death of
Clyde Weeks. On appeal, Appellant contends that the evidence was
legally insufficient to support his convictions; that the trial court
erred in allowing an unredacted 911 call containing hearsay
testimony into evidence; and that the trial court erred in refusing to
charge the jury on sympathy, despite a request by the defense. 1 For
1 The crimes occurred on February 15, 2017. In September 2017, a
Liberty County grand jury indicted Appellant for malice murder, felony
murder, three counts of aggravated assault, and three counts of possession of
a firearm during the commission of a felony in connection with Appellant’s
crimes against Weeks, Garrett Champion, and Vincent Smith. Appellant was
tried in July 2018, and a jury found him guilty of malice murder (as to Weeks),
two counts of aggravated assault (as to Weeks and Champion), and two counts
of possession of a firearm during the commission of a felony (as to Weeks and
Champion). The jury found Appellant not guilty of the remaining charges of
felony murder (as to Weeks) and aggravated assault and possession of a
1
the reasons set forth below, we affirm.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. On February 15,
2017, at around 5:00 p.m., Weeks went to visit his friend Elijah
Ferguson, who lived in Hinesville with his mother, Cynthia
Williams. Weeks rode to Ferguson’s house with two other friends,
Garrett Champion and Vincent Smith, in Champion’s car. After
arriving and backing into the driveway, Weeks, Champion, and
Smith saw Appellant exit a house across the street and also noticed
Appellant’s car, a blue Dodge Dart, parked nearby. Around this
time, Ferguson came out of his house. According to Champion, he
then summoned Appellant over because Appellant had tried to rob
firearm during the commission of a felony (as to Smith). The trial court
sentenced Appellant to serve life in prison for the malice murder count, 20
years in prison to run concurrent for the aggravated assault count (as to
Champion), and consecutive five-year terms for each of the two firearm
possession counts. The other aggravated assault count merged for sentencing
purposes into the malice murder count. Appellant filed a timely motion for
new trial on July 23, 2018, which he amended on June 17, 2019. On July 15,
2019, the trial court held an evidentiary hearing and denied Appellant’s motion
in open court. On December 23, 2019, the trial court issued a written order,
denying the motion for new trial. Appellant filed a timely notice of appeal to
this Court on August 1, 2019, and the case was docketed to this Court’s term
beginning in December 2020 and submitted for a decision on the briefs.
2
Champion a few months earlier, and Champion wanted to talk about
the incident. Appellant walked over to Champion’s car. According
to Champion and Smith, when Appellant approached, Champion
asked if Appellant remembered him, and Appellant pulled a small
semi-automatic pistol2 out of his pants and aimed the gun at
Champion’s head, asking, “[W]hy should I know you?” Champion
then accused Appellant of trying to rob him, and Appellant asked
“what [Champion] was going to do about it.” Weeks and Smith tried
to de-escalate the situation, and Weeks said to Appellant, “[G]o put
the gun up and let’s just fight in the street.” Appellant went back to
his car and put the gun inside the vehicle. Weeks and Appellant
then engaged in a fist fight in the cul-de-sac by Ferguson’s house.
After losing the fight, Appellant returned to his car, at which point
Champion and Smith shouted, “[H]e’s going for the gun!” Weeks told
them to run, and Weeks, Champion, and Smith started running
2At trial, Smith testified that Appellant’s gun looked like a .22-caliber,
but on cross-examination, he admitted that he “didn’t know exactly
what the gun was,” but “everyone else [was] saying it was like a .22.”
3
away towards the back of Ferguson’s house. While running,
Champion and Smith heard multiple gunshots behind them. Smith
then heard what sounded like Appellant’s car leaving the
neighborhood, and Champion saw a blue Dodge Dart “flying down
the road.” Champion and Smith then came back around the side of
Ferguson’s house and saw Weeks lying on the ground between
Ferguson’s yard and the neighbor’s yard, having been shot several
times.
Meanwhile, Ferguson’s mother, Williams, was inside the
house. When Champion’s car pulled into the driveway around 5:00
p.m., Williams asked Ferguson to tell Champion to leave. Ferguson
went outside, but a few minutes later, he ran back inside the house,
telling Williams there was a fight and Appellant had a gun.
Williams looked outside and saw Weeks and Appellant “boxing” in
the cul-de-sac. Ferguson tried to go back outside, but Williams stood
in front of the door to block his exit. Williams then heard a “gun go
off,” firing “at least three, maybe three or four” times. She did not
see who fired the weapon because she was “tussling” with Ferguson
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at the time, attempting to keep him inside the house. Right after
hearing the gunshots, at approximately 5:25 p.m., Williams called
911. While Williams was on the phone with the 911 operator, she
saw Weeks lying on the ground on his back beside her car, trying to
breathe. During the 911 call, Williams stated that she had heard
three gunshots and “somebody got shot” in front of her house.
Williams asked for an ambulance and provided Weeks’s name and
age. The 911 operator asked who did it, and Williams asked
Ferguson the same question. Ferguson responded, “Philemon.” The
911 operator then asked if Williams had a description “to help the
police out,” and Williams asked Ferguson, “Do you have a
description of who did this?” Ferguson again responded, “Philemon.”
Williams told the 911 operator, “He, they know who did it,
Philemon.”
John O’Brock, a neighbor who lived one house over, heard four
or five gunshots between 5:00 and 5:30 p.m. He looked out the
window and saw a blue Dodge Dart driving away, slowly at first and
then speeding down the street.
5
At approximately 5:30 p.m., police officers arrived at the scene
of the shooting. They found Weeks, who was still alive, lying on his
back in the side yard of Ferguson’s house. Champion was attending
to Weeks, holding a makeshift compress against his abdomen to try
to stop the bleeding. Emergency medical personnel soon arrived and
transported Weeks to the hospital. Upon Weeks’s arrival at the
hospital, he was pronounced dead. The medical examiner
determined that the cause of death was internal injuries from a
gunshot wound to the back.
Police officers spoke to several witnesses, including Champion,
Smith, Ferguson, and O’Brock, at the crime scene. Based upon these
statements, officers went to Appellant’s residence that night.
Appellant was detained and taken to the police department to be
interviewed. Appellant agreed to waive his Miranda 3 rights and
gave a statement to police officers. During the interview, Appellant
stated that he did not know about the shooting, had been with his
mother in Savannah all day, and did not return to Hinesville until
3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
6
about 4:45 or 5:00 p.m. Appellant denied being anywhere near
Ferguson’s house or the surrounding neighborhood that day and
stated that after he returned from Savannah, he did not leave his
home again. The police noted that Appellant had a bruise under his
right eye, and when asked about it, Appellant stated that it
happened a week or so earlier. At the conclusion of the interview,
Appellant was arrested.
The next day, February 16, police officers returned to the scene
and found a .22-caliber shell casing in the yard next to Ferguson’s
house, about ten feet from where Weeks was shot. Police officers
also obtained a video recording from a security camera located on a
house nearby. The recording showed a blue Dodge Dart, matching
the description of Appellant’s vehicle, driving into the neighborhood
toward the cul-de-sac at approximately 5:19 p.m. on February 15.
Six minutes later, the recording showed the same blue Dodge Dart
leaving the neighborhood. After obtaining search warrants, police
officers went to Appellant’s residence to photograph and search
Appellant’s vehicle. Appellant’s vehicle matched the vehicle shown
7
in the video recording because, among other similarities, both had a
broken right tail light. Police officers also recovered a cell phone
registered to Appellant inside the car. The cell phone records
showed that Appellant’s phone transmitted signals exclusively in
Hinesville throughout the day of February 15, demonstrating that
Appellant did not travel to Savannah.
2. Appellant contends that the evidence presented at trial
was insufficient to support his convictions under the standard set
forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d
560) (1979), because the only person who identified Appellant as the
shooter was Ferguson, who was not outside when the shooting
occurred and disappeared soon after the shooting. 4 Appellant also
asserts that Ferguson’s statements were hearsay and were admitted
over his objection at trial (which will be addressed in Division 3
below).
4 At trial, Williams, Ferguson’s mother, testified that Ferguson left her
house shortly after the shooting occurred, and she did not have contact with
him for several months. Additionally, neither party could locate Ferguson
prior to trial.
8
When evaluating challenges to the sufficiency of the evidence
as a matter of constitutional due process, “we view the evidence
presented at trial in the light most favorable to the verdicts and ask
whether any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt of the crimes of which he was
convicted.” Boyd v. State, 306 Ga. 204, 207 (1) (830 SE2d 160) (2019)
(citing Jackson, 443 U. S. at 319, and Jones v. State, 304 Ga. 594,
598 (820 SE2d 696) (2018)). “It is the jury’s role to resolve conflicts
in the evidence and determine the credibility of witnesses.” Smith
v. State, 280 Ga. 161, 162 (1) (625 SE2d 766) (2006). “This Court
does not reweigh evidence or resolve conflicts in testimony; instead,
evidence is reviewed in a light most favorable to the verdict, with
deference to the jury’s assessment of the weight and credibility of
the evidence.” Harris v. State, 304 Ga. 276, 278 (1) (818 SE2d 530)
(2018) (citations and punctuation omitted). Thus, when we consider
the sufficiency of evidence, we “consider all of the evidence admitted
by the trial court, regardless of whether that evidence was admitted
erroneously.” Dublin v. State, 302 Ga. 60, 67-68 (805 SE2d 27)
9
(2017). Pursuant to the standard set forth in Jackson v. Virginia,
we conclude that the evidence was sufficient for a jury to find
Appellant guilty beyond a reasonable doubt of the crimes of which
he was convicted. See Jackson, 443 U. S. at 319.
Appellant further contends that all of the evidence presented
by the State was circumstantial, with the exception of the hearsay
testimony of Ferguson. See OCGA § 24-14-6 (“To warrant a
conviction on circumstantial evidence, the proved facts shall not only
be consistent with the hypothesis of guilt, but shall exclude every
other reasonable hypothesis save that of the guilt of the accused.”).
Questions as to the reasonableness of hypotheses are
generally to be decided by the jury which heard
the evidence and where the jury is authorized to find that
the evidence, though circumstantial, was sufficient to
exclude every reasonable hypothesis save that of guilt,
that finding will not be disturbed unless the verdict of
guilty is insupportable as a matter of law.
Smith, 280 Ga. at 162 (citations and punctuation omitted) (holding
that the evidence, which included statements from several witnesses
who saw the defendant with a gun prior to the shooting and then
heard gunshots fired from the location where the victim’s body was
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ultimately found, was sufficient to support the jury’s finding of
guilt). Moreover, if there is any direct evidence presented by the
State, the circumstantial evidence statute does not apply to a
sufficiency analysis. See OCGA § 24-14-6. See also Jackson v.
State, 310 Ga. 224, 228 (2) (b) (850 SE2d 131) (2020).
In this case, the evidence against Appellant was not wholly
circumstantial, as the State presented direct evidence in the form of
Ferguson’s statements during the 911 call, identifying Appellant as
the person who shot Weeks. However, even if this were a wholly
circumstantial case, the evidence was sufficient to authorize the
jury “to exclude every other reasonable hypothesis save that of
guilt.” OCGA § 24-14-6. This evidence included the testimony of
several witnesses who saw Appellant with a handgun in the location
where the shooting occurred on February 15; saw Appellant’s blue
Dodge Dart parked nearby; saw Appellant and Weeks in a fist fight
just before hearing gunshots; and saw a blue Dodge Dart speeding
out of the neighborhood immediately after Weeks was shot. A video
recording from a neighbor’s home security camera also established
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that Appellant’s car was in the neighborhood prior to the shooting
and left the neighborhood immediately afterward. In addition,
Appellant’s cell phone records confirmed that he was in Hinesville
the entire day of the shooting, undermining his alibi. Thus, this
enumeration of error fails.
3. Appellant contends that the trial court erred in allowing,
over objection, the recording of Williams’s 911 call to be played in its
entirety during trial. We disagree.
Prior to trial, Appellant filed a motion in limine seeking to
exclude certain portions of the 911 recording. Specifically, Appellant
objected to the admission of the statements Ferguson made during
the 911 call in response to Williams’s questions from the 911
operator because Ferguson was not available to testify at trial.5 The
State argued that Ferguson’s statements were admissible under the
hearsay exceptions for excited utterances and present sense
impressions. See OCGA § 24-8-803 (1) and (2). The trial court
5 Ferguson’s whereabouts were unknown when the trial began in July
2018, and the trial court found Ferguson was unavailable to testify under
OCGA § 24-8-804 (a) (5).
12
denied Appellant’s motion, ruling that it would admit the 911
recording in its entirety because Ferguson’s statements were
admissible under a hearsay exception, without specifying which
exception applied.
Subsequently, in the trial court’s order denying Appellant’s
motion for new trial, the court ruled that Ferguson’s statements
during the 911 call were admissible under the hearsay exceptions
for excited utterances and present sense impressions in OCGA § 24-
8-803 (1) and (2).
OCGA § 24-8-803 (1) and (2) provide:
The following shall not be excluded by the hearsay rule,
even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or
explaining an event or condition made while the declarant
was perceiving the event or condition or immediately
thereafter;
(2) Excited utterance. A statement relating to a startling
event or condition made while the declarant was under the
stress of excitement caused by the event or condition[.]
Although Appellant raised both hearsay and Confrontation
Clause claims in his motion for new trial, he raises only hearsay
arguments on appeal, and thus, we address only those arguments.
13
Appellant contends that the trial court erred in finding that the
statements made by Ferguson during the 911 call were admissible
under either the present sense impression or excited utterance
hearsay exceptions. Specifically, Appellant asserts that Ferguson’s
statements could not constitute a present sense impression because
Ferguson was not outside when the shooting took place, and he could
not have witnessed or “personally perceived” the shooting.
Appellant further asserts that Ferguson’s statements were not
admissible as excited utterances because no circumstances existed
to suggest that any of the statements Ferguson made to Williams
were excited or spontaneous, and there was no indication that
Ferguson was nervous, excited, in shock, or in a distraught state of
mind so as to render him incapable of normal reflective thought. On
this basis, Appellant asserts that Ferguson’s statements were
inadmissible hearsay and should have been redacted from the 911
call, and the trial court erred in failing to redact them, resulting in
harm to Appellant. We conclude that the trial court did not abuse
its discretion in admitting the 911 recording into evidence at trial
14
under the excited utterance exception. See McCord v. State, 305 Ga.
318, 324 (2) (a) (ii) (825 SE2d 122) (2019).
“The excited utterance exception provides that ‘[a] statement
relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition’
shall not be excluded by the hearsay rule.” Atkins v. State, 310 Ga.
246, 250 (2) (850 SE2d 103) (2020) (quoting OCGA § 24-8-803 (2)).
“The basis for the excited utterance exception to the hearsay rule is
that such statements are given under circumstances that eliminate
the possibility of fabrication, coaching, or confabulation, and that
therefore the circumstances surrounding the making of the
statement provide sufficient assurance that the statement is
trustworthy and that cross-examination would be superfluous.” Id.
“Whether a hearsay statement was an excited utterance is
determined by the totality of the circumstances,” and in this regard,
“[t]he critical inquiry is whether the declarant is still in a state of
excitement resulting from that event when the declaration is made.”
Id. (citations and punctuation omitted).
15
In this case, the trial court did not abuse its discretion in
determining that Ferguson’s statements during the 911 call were
admissible under the excited utterance hearsay exception. The
statements Ferguson made during the 911 call identifying Appellant
as the shooter related “to a startling event or condition” – namely,
the shooting of his friend Weeks, and these statements were made
moments after gunshots were heard – a circumstance providing
“sufficient assurance” that the statements were “trustworthy.”
OCGA § 24-8-803 (2). See Atkins, 310 Ga. at 250. Accordingly, we
conclude that the trial court did not abuse its discretion in admitting
the entire 911 recording at trial.
4. Appellant contends that the trial court abused its
discretion in refusing to charge the jury on sympathy. Appellant
asserts that he requested the sympathy charge during the charge
conference; the trial court advised that it did not intend to give this
charge; and Appellant objected after the final charge was given,
preserving the issue for review. We conclude this contention is
without merit.
16
The decision over whether to give a cautionary charge to
the jurors, informing them that they should not be
influenced by sympathy or prejudice in reaching a verdict,
is a matter generally addressed to the sound discretion of
the trial judge. Cautionary instructions are not favored
since in most instances they are productive of confusion
and tend to restrict the jury’s untrammeled consideration
of the case. Where nothing in the record indicates that
any improper circumstance was injected into the case,
and the charge of the court fully and accurately instructed
the jury on the issues involved, a new trial will not be
granted because of the refusal of the court to give a
cautionary request.
Fincher v. State, 289 Ga. App. 64, 68 (3) (656 SE2d 216) (2007)
(citation and punctuation omitted).
Given that Appellant failed to point to any specific evidence in
the record or to any incidents that arose during trial to support
giving the requested cautionary sympathy charge, we cannot say
that the trial court abused its discretion in declining to give the
cautionary charge Appellant requested. See Favors v. State, 305 Ga.
366, 369-370 (3) (825 SE2d 164) (2019). Accordingly, this final
enumeration of error fails.
Judgment affirmed. All the Justices concur.
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