Hooper v. State ( 2022 )

In the Supreme Court of Georgia
Decided: March 8, 2022
S22A0289. HOOPER v. THE STATE.
ELLINGTON, Justice.
A jury found Timone Hooper guilty of murder, attempted
armed robbery, and possession of a firearm during the commission
of a crime arising out of a shooting that killed Lawrence Bryan and
wounded Keron Brown. 1 On appeal, Hooper contends that he
1 The attempted robbery and shooting occurred on August 7, 2015. On
July 12, 2017, a Chatham County grand jury returned an indictment against
Hooper for malice murder (Count 1), felony murder (Counts 2 through 5),
attempted armed robbery against Bryan (Count 6), aggravated assault against
Bryan (Counts 7 and 8), possession of a firearm by a convicted felon (Count 9),
attempted armed robbery against Brown (Count 10), aggravated assault
against Brown (Counts 11 and 12), and five counts of possession of a firearm
during the commission of a crime (Counts 13 through 17). On February 20,
2019, the grand jury returned a superseding indictment charging Hooper, in
addition to the 17 offenses charged in the original indictment, with three
counts of terroristic threats with intent to retaliate against two of the State’s
witnesses and three counts of influencing a witness (Counts 18 through 23). At
a trial that ended on August 23, 2019, a jury found Hooper guilty on Counts 1
through 17 and not guilty on Counts 18 through 23. The trial court sentenced
Hooper to serve life in prison on Count 1, and to prison terms of 30 years on
Count 6, 10 years on Count 9, 30 years on Count 10, 5 years on Count 13
(possession of a firearm during the commission of Bryan’s murder), and 5 years
received ineffective assistance based on his counsel’s failure to
request a jury instruction on the requirement that confessions be
corroborated, and he contends that the trial court plainly erred in
failing to give that instruction sua sponte. Hooper also contends that
the trial court violated his constitutional right to a public trial by
excluding spectators from the courtroom in order to question a juror
about her acquaintance with a potential witness. For the reasons
explained below, we affirm.
Pertinent to Hooper’s arguments on appeal, the evidence
presented at trial showed the following. Brown, the surviving victim,
testified as follows. On the night of August 6, 2015, Brown and
Bryan, who were longtime close friends, went to an apartment on
Duane Court in Savannah to gamble. Brown and Bryan, who was
known as “LB,” were at the apartment “shooting dice” with several
on Count 16 (possession of a firearm during the commission of the attempted
armed robbery of Brown). The remaining counts were vacated as a matter of
law or merged with other counts for sentencing purposes. Hooper filed a timely
motion for new trial, which he amended on January 28 and February 10, 2020.
The trial court conducted a hearing on the motion on February 11, 2020, and
denied the motion on September 1, 2021. Hooper filed a timely notice of appeal.
The case was docketed in this Court to the term beginning in December 2021
and submitted for a decision on the briefs.
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other people until around midnight. After Brown and Bryan exited
the apartment, two people ran toward them, as if intending to tackle
them. The unknown men wore dark clothing, their faces were
covered, and both had guns. Brown struggled with one of the men,
and they both fell to the ground. The man got up and fired his gun
at Brown as he ran away, striking Brown in the chest. Brown heard
10 to 12 more gunshots and then ran through the driveway between
buildings to find Bryan. Bryan was sitting on the ground, his shirt
bloody. At 12:37 a.m., Brown called 911 with Bryan’s phone and
yelled for others in the apartment to come help him.
Rickardoe Sabb testified as follows. Sabb had been gambling
with Brown and Bryan that night. Just after Brown and Bryan left
the apartment, Sabb heard eight to ten gunshots and then heard
Brown yelling for help. Sabb went to assist and helped the wounded
men into Bryan’s car. Bryan collapsed on the way to the hospital and
was later pronounced dead as a result of a gunshot wound to the
chest.
Officers responding to the 911 call completely blocked off
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Duane Court until 7:00 to 7:30 a.m. the following morning, August
7. Investigators collected six 9mm shell casings in the area of the
shooting, which a firearms examiner testified had all been fired from
the same Glock 9mm pistol. Four bullets were collected during
Bryan’s autopsy; they were also consistent with being fired from a
Glock 9mm pistol.
Tiffany Chisholm testified as follows. In August 2015, she was
dating Hooper, and he usually stayed at her apartment and
sometimes drove her car, a gold 2007 Chevy Malibu. Hooper was
driving Chisholm’s car on the night of the shooting. When Hooper
did not return to Chisholm’s apartment at the expected time that
night, she sent him a text message asking where he was, and he
responded that he could not move her car because the road was
blocked off. He returned to her apartment at about 8:00 a.m. on
August 7. After Bryan’s murder, Chisholm found a black mask and
a black hoodie in the back of her car.
An investigator testified that the only road closure in
Savannah on the night of the shooting was Duane Court for the
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crime scene investigation at issue. Cell site location data showed
that, at almost the same time as the attempted robbery, Hooper’s
cell phone placed a call from the area of the shooting. Crime scene
photos, taken while Duane Court was blocked for the investigation,
depict a vehicle that is consistent with Chisholm’s Chevy Malibu
parked near the apartment where the victims gambled that night.
Chisholm also informed detectives that Hooper was supposed to be
at work at 8:00 a.m. on August 7, not long after the road was
reopened. Hooper’s work receipts showed that he did not actually
clock into work until 9:03 a.m. that morning.
On October 30, 2015, Hooper was arrested on other charges
while he was driving Chisholm’s car. Chisholm testified that,
following Hooper’s arrest, during a phone call that was being
recorded, Hooper told her that police officers had her car and were
searching it. This prompted Chisholm to ask Hooper if there was
anything in her house that she “need[ed] to worry about.” Hooper
responded that she “needed to check [her] bed and the closet.”
Chisholm checked those areas the next day and took a gun hidden
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in the box spring under her mattress and a gun magazine that was
in the closet. Chisholm testified, “He called me [again]. I was
supposed to, once I got the gun out of my house, he told me to give it
to his friend Los.” Chisholm removed the gun and the magazine from
her apartment, just before officers arrived to search her apartment.
Chisholm went to a nearby relative’s house; Hooper’s friend, “Los,”
met her there; and she gave Los the gun and magazine. 2 Chisholm
described the gun as a “regular gun” as opposed to a revolver.
Britney Boston testified as follows. For many years before
Bryan’s murder, Boston knew Hooper from living in the same
neighborhood. Some weeks after Bryan’s murder, Boston overheard
Hooper discuss an attempted robbery with his friend “Los,” and
Hooper said that he “took LB’s life.” Boston heard Hooper say that
one of the men they were robbing grabbed him, they “tussled” and
went “to the ground,” and he shot the man. Boston told a detective
what she had heard, and she picked Hooper out of a photo lineup as
2 In the July 12, 2017 indictment charging Hooper with murder and other
charges, Chisholm was charged with tampering with evidence. She entered a
guilty plea to that charge and agreed to testify in Hooper’s trial.
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the person she overheard talking about killing Bryan. Boston also
identified Hooper at trial.
Malika Spencer testified as follows. She contacted the police
and informed detectives that, on September 16, 2015, as she was
sitting on some exterior stairs in the Fred Wessels Homes complex
in Savannah, she overheard four men talking about a murder.
Spencer overheard one man, later identified as Hooper, tell the other
men that it was a robbery that “went bad” when the victim would
not “give it up” and grabbed Hooper, they “kind of tussled,” and
Hooper shot the victim, because “he didn’t have a choice.” 3 Spencer
was angry that Hooper was “bragging” about shooting the victim
“like it was just another day.” Spencer later picked Hooper out of a
photographic line-up as the individual she overheard talking about
the shooting. Spencer also identified Hooper at trial. Cell site
location data for Hooper’s phone records placed his phone, at the
time Spencer heard Hooper talking about the attempted robbery and
3 Spencer testified that she asked Boston, her friend whom she was
visiting that evening, who the men were, and Boston identified the man
Spencer heard telling about the shooting as Hooper.
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the shooting, near the location where she heard him make the
statements.
Henry Watson testified as follows. While Watson was Hooper’s
cellmate in federal prison in Jesup, Hooper told Watson that he had
been involved in a murder where he tried to rob the victim, he and
the victim “had a tussle, a squabble, and he had to wind up shooting
him.” He told Watson that he was going to “beat the [murder]
charge” because he was wearing a mask during the attempted
robbery, so witnesses could not identify him, and because he was
wearing gloves and washed his hands with tomato juice after the
shooting to remove any gun powder. Hooper also told Watson that
he was in a brown 2010 Malibu that night and that he used a 9mm
gun, which “he like[d] to get up close and personal with.”
On October 31, 2015, the day after Hooper was arrested on
federal charges, a search warrant was executed at Chisholm’s
apartment. In two shoe boxes in Chisholm’s bedroom closet,
investigators found a gun holster, a Glock backstrap, a Glock 9mm
extended magazine, work receipts with Hooper’s name on them, and
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multiple latex gloves. Investigators also located black-colored men’s
clothing in Chisholm’s bedroom. Investigators searched Chisholm’s
car and located a fully loaded .45-caliber pistol, a black bucket hat,
a black hoodie, a black jacket with latex gloves in the pocket, a black
bandana, more of Hooper’s work receipts, and a pair of dice.
Hooper’s and Chisholm’s cell phone records showed that their
phones exchanged text messages on the night of the murder. Cell
site location data showed that, shortly after Bryan’s murder,
Hooper’s and Chisholm’s phones were not together and that
Hooper’s phone was in the area of the crime scene. At 5:24 a.m.,
when Duane Court was blocked, Hooper’s phone texted Chisholm’s
phone, “Ill be there i cant move the car yet,” and she asked where he
was. Hooper’s phone responded, “They still got that sh*t block off im
on skiddaway tho.” An investigator testified that Skidaway Road is
near Duane Court. At 8:06 a.m., shortly after the road block ended,
Hooper’s phone texted Chisholm’s phone that he was on the way.
Hooper was interviewed by detectives on January 31, 2017,
while he was in federal prison. In his interview, Hooper denied being
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in the area of the crime scene around the time of the murder. He did
confirm that the 9mm magazine, black clothes, and gloves that were
found in Chisholm’s apartment and car were his.
1. Hooper contends that he received ineffective assistance of
counsel because his attorney failed to request a jury instruction on
the statutory requirement that a confession must be corroborated to
support a conviction. See OCGA § 24-8-823 (“A confession alone,
uncorroborated by any other evidence, shall not justify a
conviction.”).
To establish ineffective assistance of counsel, a defendant must
show that his trial counsel’s performance was deficient, which
“requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Strickland v. Washington, 466 U. S. 668, 687
(III) (B) (104 SCt 2052, 80 LE2d 674) (1984). The defendant must
also show that the deficient performance prejudiced the defense,
which requires showing that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
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would have been different.” Id. at 694 (III) (B). “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. If an appellant fails to show either deficiency or
prejudice, this Court need not examine the other prong of the
Strickland test. See DeLoach v. State, 308 Ga. 283, 287-288 (2) (840
SE2d 396) (2020).
Hooper contends that “a proper instruction on the State’s main
evidence” – his confessions – “reasonably could have led to a
different result” because there were no eyewitnesses who identified
him as a participant in the shooting. Although a confession alone
cannot sustain a conviction, “no specific manner of corroboration of
the confession is required, and corroboration in any particular is
sufficient.” Muckle v. State, 302 Ga. 675, 679 (1) (b) (808 SE2d 713)
(2017) (citation and punctuation omitted). In this case, even
accepting Hooper’s premise that his statements about the attempted
robbery and shooting were confessions, his statement that he “took
LB’s life” was corroborated by testimony that the decedent, Bryan,
was known as “LB.” Hooper’s description in his statements
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regarding a “tussle” during the attempted armed robbery that led to
the shooting was echoed and corroborated by Brown’s eyewitness
testimony. Hooper’s statement that a 9mm handgun was his choice
of weapon “to get up close and personal with” was corroborated by
Brown’s testimony that the robbers rushed at him and Bryan as if
to tackle them, by evidence that the murder weapon was a 9mm
Glock pistol, and by evidence that 9mm pistol accessories were found
in Chisholm’s closet. Hooper’s statement that he could beat a
murder charge because he had worn a mask was corroborated by
Brown’s eyewitness testimony about the assailants’ masks and by
evidence that, in the days after the shooting, Chisholm found a black
bandana in her car, which Hooper had driven on the night of the
shooting. This evidence was sufficient to corroborate Hooper’s
confessions under the applicable standard. See id.In addition, the State presented other strongly inculpatory
evidence, which included Hooper’s communications with Chisholm
in the minutes and hours after the shooting that he was unable to
drive home because the street was blocked. These communications
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dovetailed with an investigator’s testimony that the street where the
shooting occurred was the only one blocked in Savannah that night
and with cell site location data that placed Hooper’s phone in that
area at the time of the shooting. The evidence was further
strengthened by Hooper’s warning to Chisholm, while investigators
were in route to search Chisholm’s apartment, that she needed to
check her bed, where she found his gun and disposed of it before it
could be seized, and by items seized from Chisholm’s closet,
including accessories for a Glock 9mm pistol, the murder weapon.
Because several particulars of Hooper’s statements were
corroborated, and particularly in light of the strength of the State’s
evidence as a whole, he fails to show a reasonable probability of a
different outcome, if the corroboration jury instruction had been
requested and given. See Muckle, 302 Ga. at 679 (1) (b). Hooper’s
ineffective assistance claim therefore fails.
2. In a related argument, Hooper contends that the trial court
was required, even absent a request, to instruct the jury on the
statutory requirement that confessions be corroborated and that the
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failure to do so sua sponte was plain error.
“To show plain error, the appellant must demonstrate that the
instructional error was not affirmatively waived, was obvious
beyond reasonable dispute, likely affected the outcome of the
proceedings, and seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Clarke v. State, 308 Ga. 630, 637
(5) (842 SE2d 863) (2020) (citation and punctuation omitted).
“Satisfying all four prongs of this standard is difficult, as it should
be. The Court need not analyze all of the elements of the plain error
test when the appellant fails to establish one of them.” Hood v. State,
311 Ga. 855, 866 (2) (860 SE2d 432) (2021) (citations and
punctuation omitted).
As to the third element, Hooper contends that the instructional
error likely affected the outcome of the proceedings, because the trial
court’s incomplete instruction “left the jury in the dark” about “the
important requirement” that testimony that he made admissions of
guilt after the event “had to be corroborated before [that testimony]
could establish [his] guilt[.]” We conclude, however, that Hooper
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cannot satisfy the third prong of the plain error test by showing that
the trial court’s failure to give the jury instruction sua sponte on
corroboration of a defendant’s confession likely affected the outcome
of the trial court proceedings, because there was ample
corroborating evidence at trial, as well as additional supporting
evidence, as explained above in Division 1. See Clarke, 308 Ga. at
637 (5); English v. State, 300 Ga. 471, 474-475 (2) (796 SE2d 258)
(2017).
3. Hooper contends that his convictions should be reversed
because the trial court violated his right to a public trial under the
United States and Georgia constitutions by clearing the courtroom
of spectators, at the State’s request, to question a juror who sent a
note to the judge indicating that she was acquainted with a witness
who was in the gallery. 4
4 See U. S. Const., amend. VI (“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed[.]”); Ga. Const.
of 1983, Art. I, Sec., I, Par. XI (“In criminal cases, the defendant shall have a
public and speedy trial by an impartial jury[.]”); Waller v. Georgia, 467 U. S.
39, 48 (II) (B) (104 SCt 2210, 81 LE2d 31) (1984) (“The party seeking to close
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The improper closing of a courtroom is a structural error that
requires reversal only if the defendant properly objects at trial and
later raises the issue on direct appeal. See Morris v. State, 308 Ga.
520, 530 (5) (842 SE2d 45) (2020). Because the record reflects that
Hooper did not make a contemporaneous objection to the exclusion
of spectators from the courtroom during questioning of the juror, he
has waived his right to appellate review of the trial court’s action.
See id.Judgment affirmed. All the Justices concur.
the hearing must advance an overriding interest that is likely to be prejudiced,
the closure must be no broader than necessary to protect that interest, the trial
court must consider reasonable alternatives to closing the proceeding, and it
must make findings adequate to support the closure.”).
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