Thomas v. State , 296 Ga. 485 ( 2015 )

In the Supreme Court of Georgia
Decided: February 2, 2015
S14A1918. THOMAS v. THE STATE.
BENHAM, Justice.
Appellant Bobby Gene Thomas was convicted, as a party to the crimes,
for malice murder and other offenses arising out of a convenience store armed
robbery.1 For the reasons set forth below, we affirm the convictions.
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The crimes occurred on January 14, 2006. A Dougherty County grand jury returned an
indictment on July 26, 2007, charging appellant with malice murder (Count 1) and felony murder
(aggravated assault) (Count 2) of Herbert Wells; armed robbery (Count 3); aggravated assault of
Gary Patel by assaulting him with intent to rob (Count 4); aggravated assault of Gary Patel by
shooting him with a deadly weapon (Count 5); aggravated assault of Herbert Wells by shooting him
with a deadly weapon (Count 6); aggravated battery of Gary Patel by maliciously causing bodily
harm by rendering his leg useless by shooting him in the leg (Count 7); and aggravated battery of
Herbert Wells by maliciously causing bodily harm by rendering his brain useless by shooting him
in the head (Count 8). Each of these counts charged appellant as a party to the alleged crimes by
intentionally aiding and abetting Earl Randolph Scott, who was indicted separately. Appellant was
tried by a jury September 17-19, 2007, and the jury found him guilty on all counts. The conviction
on the charge of aggravated assault of Wells (Count 6) was merged with the count for felony murder
(Count 2), and the conviction on the charge for felony murder was vacated as a matter of law. For
sentencing purposes, the trial judge merged the conviction for Count 5 with the conviction for Count
1. The trial judge sentenced appellant as a recidivist to imprisonment for life without the possibility
of parole on Count 1; imprisonment for life without parole for Count 3, to be served consecutively
with the sentence for Count 1; imprisonment for a term of twenty years without the possibility of
parole for the conviction for Count 4, to be served concurrently with the sentence for Count 1;
imprisonment for a term of twenty years without the possibility of parole for the conviction for
Count 7, to be served concurrently with the sentence for Count 1; and imprisonment for a term of
twenty years without the possibility of parole for the sentence for Count 8, to be served consecutively
with the sentence for Count 7. Appellant filed a motion for new trial on October 17, 2007, which
was later amended, and the motion was heard on November 25, 2013. By order dated April 24,
2014, the trial court denied the motion. Appellant filed a timely notice of appeal on April 29, 2014.
1. We first address appellant’s assertion that insufficient evidence was
presented to prove beyond a reasonable doubt that he was a party to the crimes
committed by his accomplice, Earl Randolph Scott. Viewing the evidence in a
light most favorable to the verdict, the surveillance camera videos at the
convenience store that was robbed show appellant, who was identified at trial
in these videos by his clothing, entered the store just minutes before a person
identified as Scott entered. Both were wearing dark hooded jackets, and on the
video appellant is distinguishable from Scott because appellant’s slacks appear
to be black and his jacket, while dark, is lighter in color than his slacks, whereas
Scott’s jacket and slacks both appear to be black. Another distinguishing
characteristic is that Scott’s light-colored shirttail is shown hanging below the
bottom of his jacket. The two stood at the lottery ticket desk for several minutes
looking around the store. Both of them appeared to be wearing a white glove
or carrying a white cloth wrapped around one hand. Scott exited the store and
walked to the corner of the building. One of the outside cameras shows a hand
that appears to be covered in something white being stuck out of the door for a
The case was docketed in this Court to the September 2014 term of court for a decision to be made
on the briefs.
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moment, at which point Scott walked back and re-entered the store. From a
contemporaneous video recording taken by an inside camera, appellant was
identified as the person apparently signaling at the door. A short time later they
both exited the store and walked away, one after the other.
Less than half an hour later, Scott drove up to the store parking lot in a
two-toned Cadillac and backed into a parking space. A witness who was a
lifelong acquaintance of appellant testified that he saw the Cadillac backing into
the space, noticed appellant exiting the passenger side of the vehicle, and was
able to describe appellant’s clothing. The witness testified that appellant got out
of the car first and the driver followed him. From the videotape, the witness
identified appellant as the first of the two hooded men to enter the store. After
wandering about the store for a few minutes, Scott pulled a gun and can be heard
demanding that the clerks open the registers and get down on the floor. Scott
then fired two shots. One struck store clerk Gary Patel in the leg. The other
struck Herbert Wells, a patron of the store. Wells was transported to the
hospital and treated, but he died of his injuries three weeks later. Appellant, in
his lighter colored jacket, can be seen in the videotape crouching near the door
and looking out. Consistent with the testimony of one of the store clerks,
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appellant can be heard on the recording exhorting Scott to “hurry, hurry, hurry,”
and telling Scott, “Man, come on hurry up, people are coming.” Appellant ran
out of the store and out of sight. Scott exited the store, got into the Cadillac, and
also left the scene.
Apparently, Scott picked appellant up in the car, because shortly after the
robbery, Scott drove the Cadillac to a house where Bobby Lee Williams was
visiting and asked Williams to drive the car and leave it at a certain hotel.
Williams later identified appellant from a photographic line-up as the passenger
who exited the vehicle with Scott. The vehicle was found at the hotel and
impounded and, pursuant to forensic testing, appellant’s palm print was lifted
from the passenger side rear door. The following day, acting on an order to be
on the lookout for appellant, an officer went to look for appellant at his
girlfriend’s apartment. The officer saw a resident of a nearby apartment pushing
appellant out of the apartment as appellant attempted to push his way back in.
When appellant saw the officer, he fled through the parking lot, and the officer
pursued him and tackled him to the ground, after which appellant was taken into
custody.
Appellant contends that the only thing the evidence proves with respect
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to his actions before Scott shot the victims is that he rode to the store in the same
car as Scott, got out of the car, and went into the store. Appellant denies the
audio portion of the tape establishes that he exhorted Scott to hurry after the
shots were fired, and instead argues the tape demonstrates he dropped to the
floor as the shots were fired and was just as surprised by Scott’s actions as the
others present in the store. The tapes were played to the jury, and it was for the
jury to decide whether or not the audio portion of the tapes establish that
appellant made the statements the State attributed to him. See Gill v. State, 295
Ga. 705, 707 (1) (763 SE2d 719) (2014) (when reviewing the sufficiency of the
evidence, this Court defers to the jury’s assessment of the weight and credibility
of the evidence); see also Ferguson v. State, 307 Ga. App. 232 (1) (704 SE2d
470) (2010) (identity is an issue for the jury and it was for the jury to decide
whether the videotape of the crime scene showed defendant was the individual
who stole a car). Although one of the store clerks testified that a second man,
along with the man who shot the victims, was also demanding money and was
telling the shooter to hurry up because people were coming, the clerk did not
identify appellant or the accomplice at trial. Appellant thus claims there is no
direct evidence that he was involved in demanding money and thus insufficient
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evidence to establish he was a party to the robbery and shootings.
Pursuant to OCGA § 16-2-20 (a), “[e]very person concerned in the
commission of a crime is a party thereto and may be . . . convicted of
commission of the crime.” “[Q]uestions as to the reasonableness of hypotheses
other than the guilt of the defendant are generally for the jury to decide, and this
Court will not disturb a finding of guilt unless the evidence is insupportable as
a matter of law.” Lowe v. State, 295 Ga. 623 (1) (759 SE2d 841) (2014). Mere
presence at the scene of the crime and mere approval of a criminal act are
insufficient to establish that a defendant was a party to the crime, and “[p]roof
that the defendant shares a common criminal intent with the actual perpetrators
is necessary.” (Citation and punctuation omitted.) Eckman v. State, 274 Ga. 63,
65 (1) (548 SE2d 310) (2001). But such shared criminal intent “may be inferred
from the defendant’s conduct before, during, and after the crime.” Id. See also
Slaton v. State, 296 Ga. 122 (1) (765 SE2d 332). Here, there was sufficient
evidence of such conduct from which a jury could find that appellant shared a
common criminal intent with the perpetrator of these crimes. Thus, pursuant to
the standard set forth in Jackson v. Virginia, 443 U.S. 305, 319 (III) (B) (99 SCt
2781, 61 LE2d 560) (1979), the jury was authorized to find beyond a reasonable
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doubt that appellant was guilty of the crimes for which he was convicted as a
party to those crimes.
2. During the State’s voir dire of the prospective jurors, the prosecuting
attorney asked the following question: “Is there anyone here who believes that
a person who assists another person in the commission of a crime–is there
anyone who believes a person who assists another should not be prosecuted?”
Appellant’s counsel objected on the ground that the question improperly
invoked the ultimate issue, and the trial court overruled the objection and
allowed the question. According to appellant, the trial court abused its
discretion in permitting this voir dire question to be asked, thereby depriving
appellant of a fair trial. He asserts the question posed by the prosecutor
suggested he was guilty of assisting in the commission of the crimes involved
in the case and thus planted prejudgment in the minds of the jurors. The State,
on the other hand, asserts the question was posed to determine whether
prejudgment existed in the mind of any prospective juror that appellant should
not face prosecution for his conduct.
Whether the prosecutor’s question in this case invited prejudgment or
simply probed whether any prospective juror already held a fixed opinion about
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what the result should be, assuming a critical fact in the case, is similar to the
issue presented by the appeal of the trial court’s ruling on the proposed jury
selection questions in Ellington v. State, 292 Ga. 109 (7) (735 SE2d 736)
(2012). In Ellington, this Court reversed the jury’s imposition of the death
penalty in a murder trial because we determined the trial court improperly barred
defendant’s counsel from questioning prospective jurors about whether they
would automatically impose the death penalty in a case involving the murder of
young children, which was the subject matter of the action. This Court set forth
a detailed analysis of factors to consider with respect to whether a proposed voir
dire question is within the proper scope of voir dire examinations. Id.Regarding the scope of voir dire examinations, OCGA § 15-12-133
provides:
[T]he counsel for either party shall have the right to inquire of the
individual prospective jurors examined touching any matter or thing
which would illustrate any interest of the prospective juror in the
case, including any opinion as to which party ought to prevail, . . .
[or] any fact or circumstance indicating any inclination, leaning, or
bias which the prospective juror might have respecting the subject
matter of the action . . . .
In Ellington, this Court acknowledged that on the one hand, pursuant to this
standard, the parties are entitled to ask a prospective juror about whether he or
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she would impose a certain sentence upon conviction in a criminal trial, or limit
the size of an award of damages in a civil trial, based upon certain facts
regardless of other facts and circumstances of the case. 292 Ga. at (7) (b) 125-
126. On the other hand, the parties are not entitled to ask questions that would
commit a potential juror to a particular outcome based on speculative proof and
hypothetical facts. Id. at 126. But this Court also noted that
[t]he line between permissible inquiry into ‘prejudice’ (a juror’s
fixed opinion that a certain result should automatically follow from
some fact, regardless of other facts or legal instructions) and
impermissible questions of ‘pre-judgment’ (speculation about or
commitment to the appropriate result based on hypothesized facts)
can be hazy. Thus, in this area as in other areas of voir dire
practice, appellate courts should give substantial deference to the
decisions made by trial judges, who oversee voir dire on a regular
basis, are more familiar with the details and nuances of their cases,
and can observe the parties’ and the prospective jurors’ demeanor.
Id. at 127. See also Sallie v. State, 276 Ga. 506, 510 (3) (578 SE2d 444) (2003).
In this case, the question posed by the prosecutor essentially asked whether any
prospective juror would automatically conclude that appellant should not be
prosecuted if the facts established he merely assisted another person in the
commission of the crime. Accordingly, we conclude the question is most
reasonably viewed as seeking to determine prejudice in the mind of any
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prospective juror. We conclude the question did not ask the jurors to prejudge
the case based upon hypothetical facts, and we disagree with appellant’s
assertion that the question improperly suggested he was guilty of assisting in the
commission of the crimes involved in the case or could reasonably be viewed
as planting prejudgment in the minds of the jurors. We affirm the trial court’s
exercise of discretion in permitting the question posed.
3. The State called Wells’s sister as a witness at trial. She testified that
Wells regularly went to the convenience store to sit around and talk to the
patrons, that he was disabled, didn’t have a left eye, and had leg problems. She
further testified that Wells was “a little slow.” Immediately before trial, during
the presentation of pretrial motions, appellant’s trial counsel objected to any
potential testimony of this witness about Wells’s mental capability because,
appellant argued, an expert witness would be required to present any such
testimony. Appellant also objected to any testimony of this witness that would
go beyond identifying the victim, such as testimony about his good character,
because such evidence would be more prejudicial than probative of any issue
related to the victim’s death. The trial court did not respond to the objection
asserting that the witness’ testimony would be prejudicial, and the court
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declined to rule on the objection asserting that the witness would not be
qualified to testify regarding the victim’s mental capacity, calling it “premature”
until such time as the witness’ testimony might establish her familiarity with the
deceased. When the witness testified, appellant’s trial counsel did not renew his
previous objections or raise any contemporaneous objection to the witness’
testimony, and he asked no questions of the witness. “Where the trial court
reserves ruling on a challenge to the admission of evidence, a defendant’s
subsequent failure to object to the testimony when it is admitted or to invoke a
ruling by the trial court preserves nothing for appellate review.” Dasher v.
State, 285 Ga. 308, 311 (4) (676 SE2d 181) (2009). The issues raised in this
enumeration of error were not preserved for appeal.
Judgment affirmed. All the Justices concur.
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