Oliphant v. State , 295 Ga. 597 ( 2014 )

In the Supreme Court of Georgia
Decided: June 16, 2014
S14A0111. OLIPHANT v. THE STATE.
HUNSTEIN, Justice.
Appellant Marcus Tyrone Oliphant was convicted of malice murder and
15 other offenses in connection with a July 2006 armed robbery and shooting
at a mobile home park in Carrollton, Georgia. Oliphant now challenges his
convictions and sentences, claiming that the evidence was insufficient on
particular counts; that trial counsel rendered ineffective assistance; that the trial
court imposed an illegal sentence on one count; and that the trial court failed to
merge or vacate certain convictions for sentencing purposes. Though we find
that the evidence was sufficient and that trial counsel did not render deficient
performance, we agree that Oliphant was improperly sentenced in various
respects, and we therefore vacate certain of his sentences, as set forth in greater
specificity below.1
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The crimes occurred on July 19, 2006. In October 2006, a Carroll County
grand jury handed down a multi-count indictment against Oliphant and eight
Viewed in the light most favorable to the jury’s verdicts, the evidence
adduced at trial established as follows. On the evening of July 19, 2006, a group
of young men attacked and robbed Pedro Espinosa at gunpoint outside his trailer
in the Elizabeth Village Mobile Home Park in Carrollton. The assailants
approached Pedro, who was sitting outside his trailer, and one of them asked for
a cigarette. Pedro rose and walked toward his trailer to retrieve a cigarette from
others, charging all nine co-indictees with the malice murder, felony murder, and
aggravated assault of Paola Vergara Cabanas; one count of armed robbery and
three counts of aggravated assault against Pedro Espinosa; one count each of
aggravated assault and first degree child cruelty as against Sabrina, Pablo, and
Valerie Monsivais; theft by receiving; and possession of a gun during the
commission of a crime. Oliphant and seven of the other eight men were also
charged with possession of a pistol by a person under the age of 18. At the
conclusion of a jury trial held October 23-25, 2007, Oliphant was convicted on 16
of the 17 counts for which he was indicted; the theft by receiving count was nolle
prossed. He was sentenced to two concurrent life terms for malice murder and
felony murder, respectively, plus a consecutive life term for armed robbery; a
concurrent 20-year term for the aggravated assault of Paola Cabanas; two
concurrent 20-year terms for the two aggravated assaults on Pedro Espinosa; five
consecutive 20-year terms for the remaining five aggravated assault counts; one
consecutive and two concurrent 20-year terms for the child cruelty counts; and two
consecutive five-year terms for each of the firearm possession counts. In total,
Oliphant was sentenced to two consecutive life terms plus 130 years to serve.
Oliphant filed a motion for new trial in November 2007, and no further action was
taken in the case until new appellate counsel entered an appearance in February
2010. The new trial motion was amended and supplemented on three occasions,
and, following a hearing on July 2, 2013, the motion was denied on July 18, 2013.
Oliphant filed a timely notice of appeal on August 16, 2013. The case was
docketed to the January 2014 term of this Court and was thereafter submitted for
decision on the briefs.
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inside, when he was grabbed from behind and put in a chokehold. Some of the
men began beating him, one of the others stuck a gun in his mouth, and another
held a gun to his temple, as they demanded that Pedro give them his money.
When Pedro responded that he had none, the men frisked him and took his cell
phone from his pocket. At the time, Espinosa’s brother, Jorge, was inside the
trailer with his wife, Paola Cabanas, and three children whom they were
babysitting. Responding to the noise outside, Jorge opened the door, saw what
was happening, and shut the door. The men threw Pedro aside, one fired two
shots at him, and the men began firing at the trailer, then fled. One of the shots
struck Jorge in the arm, another hit and killed Paola, and a third traversed both
legs of one of the children, 10-year-old Sabrina Monsivais. After the men had
run away, one returned briefly and shot at Pedro again, striking him in the leg.
Oliphant, who was 17 years old at the time of the crimes, admitted to
having accompanied several friends to Elizabeth Village on the night of July 19.
In a police interview conducted two days after the crimes, Oliphant told
investigators that, on that night, he was sitting in a car parked at Elizabeth
Village with Chade Ackey, Cody Buchanan, and Randall Laye. Oliphant
received a phone call on Ackey’s cell phone from Aerius Potts, who wanted to
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borrow Oliphant’s gun. Potts and accomplices LaBryan Lytle,2 Christopher
Coleman, Deonta Holland, and Varion Shell had decided to rob someone that
night, and they arranged to meet Oliphant’s group at Elizabeth Village. The two
groups met up, and Oliphant gave Potts his nine millimeter pistol. Eight of the
nine men, several of whom were armed with guns, then proceeded to walk
through the trailer park, while the ninth remained in his car. After an
unsuccessful attempt to enter a particular trailer, they came upon Pedro, and the
attack unfolded. All nine men fled after the shooting.
Later that evening, Coleman drove Oliphant, Potts, and Ackey out of
Carrollton to some unfamiliar farmland, where Potts disposed of Oliphant’s
pistol and a second gun used in the crimes by flinging them out of the car
window. Investigators eventually recovered both of these guns, as well as a
.380 caliber semi-automatic handgun, which Coleman admitted to using in the
crimes. Four cartridge cases and a bullet found at the scene, as well as the bullet
recovered from Paola’s body, were matched by firearms experts with Oliphant’s
nine millimeter pistol and Coleman’s .380 caliber gun.
2
We have previously affirmed the convictions and sentences of Lytle, who
was tried separately from Oliphant. See Lytle v. State, 290 Ga. 177 (718 SE2d
296) (2011).
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1. The evidence as summarized above was sufficient to enable a rational
trier of fact to conclude beyond a reasonable doubt that Oliphant was guilty of
the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99
SCt 2781, 61 LE2d 560) (1979). While there is no evidence that Oliphant fired
any of the weapons used in the shooting, there was evidence that Oliphant
supplied one of the weapons used in the crimes with the knowledge that it was
to be used to commit armed robbery; was present during the commission of the
crimes; fled the scene immediately thereafter; and accompanied several of his
accomplices to dispose of two of the weapons used in the crimes. Thus, there
was ample evidence to inculpate Oliphant as a party to the crimes. See OCGA
§ 16-2-20 (persons “concerned in the commission of a crime,” by way of
intentionally aiding and abetting or intentionally advising, encouraging or
counseling another to commit such crime, may be charged with and convicted
of commission of the crime); see also Hassel v. State, __ Ga. __ (1) (755 SE2d
134) (2014).
In addition, we reject Oliphant’s argument that his first-degree cruelty to
children convictions cannot be sustained because there was insufficient evidence
of intent. OCGA § 16-5-70 (b) defines first-degree child cruelty as “maliciously
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caus[ing] a child under the age of 18 cruel or excessive physical or mental pain.”
Contrary to Oliphant’s assertion, the statute does not require evidence that the
defendant had any specific awareness of a child’s presence when committing the
act in question. Rather, the statute requires only that the defendant commit an
act with malice and, in so doing, cause a child the requisite pain. Regarding the
intent component, we have stated that
it must be established that the mental state of the defendant has the
absence of all elements of justification or excuse and the presence
of an actual intent to cause the particular harm, or [that] there is the
wanton and wilful doing of an act with an awareness of a plain and
strong likelihood that such harm might result.
Banta v. State, 282 Ga. 392, 397 (5) (651 SE2d 21) (2007). Here, Oliphant was
an accomplice in the malice murder of Paola, which was witnessed by all three
children, who were under her care at the time. All three children testified at trial
to their fright and angst during and immediately after the shooting. The
evidence was thus sufficient to sustain the first-degree child cruelty convictions.
2. Oliphant next contends his trial counsel rendered ineffective assistance
by failing to object to the admission of prejudicial evidence on two occasions.
To establish ineffective assistance of counsel, a defendant must show that his
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trial counsel’s performance was professionally deficient and that but for such
deficient performance there is a reasonable probability that the result of the trial
would have been different. Strickland v. Washington, 466 U. S. 668, 695 (104
SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355 (3) (689 SE2d
280) (2010). If the defendant fails to satisfy either the “deficient performance”
or the “prejudice” prong of the Strickland test, this Court is not required to
examine the other. See Green v. State, 291 Ga. 579 (2) (731 SE2d 359) (2012).
(a) First, Oliphant contends that trial counsel should have objected and
moved to redact a portion of his videotaped police interview, in which one of the
officers explained why he could be charged as a party to the crime. Oliphant
claims the officer’s statements constituted an improper opinion on the ultimate
issue of Oliphant’s guilt as an accomplice. We disagree, because here, the
officer was clearly not offering opinion testimony on the ultimate issue but was
merely informing Oliphant as to the probable cause for his arrest. Counsel’s
failure to object to this brief portion of the interview does not constitute
deficient performance. See Wesley v. State, 286 Ga. at 356 (failure to make
meritless objection does not constitute deficient performance).
(b) Next, Oliphant contends that trial counsel should have objected when
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the prosecutor adduced testimony that the City of Carrollton Police Department,
which investigated the case, was a “certified police department” that had
recently received an award for having the most training hours per officer of all
the State’s police departments. Even assuming, as Oliphant argues, that trial
counsel should have objected to this testimony as improperly bolstering the
credibility of several Carrollton police officers who testified at trial, we find
little probability that this testimony, spanning less than two of the more than 300
pages of trial testimony in this case, had any effect on the result of the trial.
There being no prejudice, Oliphant’s ineffectiveness claim fails.
3. We agree with Oliphant that the trial court improperly sentenced him
to a felony-level sentence of five years on his conviction for misdemeanor
possession of a pistol by a person under the age of 18. See OCGA § 16-11-132
(b) (first conviction thereunder is misdemeanor punishable by imprisonment for
not more than 12 months). Oliphant’s sentence on Count 17 of the indictment
must, therefore, be vacated and the case remanded for resentencing on this
count.
4. We also agree with Oliphant’s contentions regarding the merger of
certain of his convictions.
(a) Oliphant was convicted of and sentenced for the malice murder,
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felony murder, and aggravated assault of Paola. Given the malice murder
conviction, the felony murder conviction should have stood vacated by
operation of law, and the trial court thus erred in imposing a separate sentence
on the felony murder count. See Lucky v. State, 286 Ga. 478 (2) (69 SE2d 825)
(2010) (when jury returns guilty verdicts on malice and felony murder as to
same victim, felony murder conviction is “surplusage” and stands vacated by
operation of law). In addition, the aggravated assault on Paola, predicated on
the same shooting that caused her death, should have merged, as a lesser
included offense, into the malice murder conviction. Id. at 481; see also Vergara
v. State, 287 Ga. 194 (1) (b) (695 SE2d 215) (2010). Accordingly, Oliphant’s
convictions and sentences on Count 2 (felony murder) and Count 3 (aggravated
assault against Paola) must be vacated.
(b) Oliphant was also convicted of and sentenced on four different counts
as to Pedro: one for armed robbery (Count 4) and three for aggravated assault
(Counts 5, 6, and 11). Count 5 alleged aggravated assault by putting a handgun
in Pedro’s mouth; Count 6 alleged aggravated assault by shooting Pedro with
a handgun; and Count 11 alleged aggravated assault with intent to rob by
pointing a handgun at Pedro and demanding money. Oliphant contends that the
aggravated assaults charged in Counts 5 and 11 should merge into the armed
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robbery conviction. We agree.
[W]here the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.
(Citation and punctuation omitted.) Drinkard v. Walker, 281 Ga. 211, 215 (636
SE2d 530) (2006). Under this test, the conviction on Count 11, aggravated
assault with intent to rob, clearly should have merged into the armed robbery
conviction. See Lucky v. State, 286 Ga. at 481-482 (comparing elements of
armed robbery with those of aggravated assault with intent to rob and
concluding that the latter was a lesser included offense of the former). As to
Count 5, the same result obtains, because the aggravated assault with a deadly
weapon as alleged here (i.e., by putting a gun in Pedro’s mouth) does not require
proof of any fact in addition to those necessary to prove the armed robbery. See
Bradley v. State, 292 Ga. 607 (1) (c) (740 SE2d 100) (2013); Long v. State, 287
Ga. 886 (2) (700 SE2d 399) (2010).
Still intact, however, are the conviction and sentence on the aggravated
assault in Count 6, which charged Oliphant with aggravated assault by shooting
Pedro. The evidence showed that, after the armed robbery and initial shooting,
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the assailants ran away, but one then returned briefly and shot Pedro in the leg.
Because this subsequent shooting occurred after the initial criminal transaction
was completed, the aggravated assault conviction arising therefrom does not
merge with the other convictions. Thomas v. State, 289 Ga. 877, 880 (3) (717
SE2d 187) (2011) (declining to merge aggravated assault with armed robbery
where the assault was committed after the armed robbery had been completed).
For the foregoing reasons, the convictions and sentences on Counts 2, 3,
5, and 11 must be vacated, and Oliphant’s sentence on Count 17 must also be
vacated. In all other respects, the judgment is affirmed.
Judgment affirmed in part and vacated in part and case remanded for
resentencing. All the Justices concur.
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