BUTLER v. State ( 2021 )

In the Supreme Court of Georgia
Decided: March 1, 2021
S20A1297. BUTLER v. THE STATE.
S20A1298. AVERY v. THE STATE.
LAGRUA, Justice.
Demarco Butler and Antonio Avery were tried jointly by a
DeKalb County jury and convicted of murder and other crimes in
connection with a shooting incident that killed Jordan Collins and
wounded his brother, Chad Collins. Butler appeals, contending that
the evidence was insufficient to support his convictions and that the
trial court erred when it admitted expert testimony about gang
activity and about Butler’s participation in a gang. In his separate
appeal, Avery contends that the evidence was insufficient to sustain
his convictions and that the trial court erred when it admitted a
certain part of a recorded police interview. We discern no error in
any of these enumerations, and we therefore affirm both of the
judgments below. 1
Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed as follows: Late in the evening
on August 31, 2016, the Collins brothers were at the home of their
sister in Lithonia, where they were visited by Clarissa McGhee and
1 The crimes occurred on September 1, 2016. On December 15, 2016, a
DeKalb County grand jury issued a multiple-count indictment against Butler,
Avery, Clarissa McGhee, and Nashea Poole. Butler and Avery were each
charged with malice murder; felony murder predicated on both the aggravated
assault of Jordan and the possession of a firearm by a convicted felon;
aggravated assault of Jordan; aggravated assault of Chad; possession of a
firearm by a convicted felon; possession of a firearm during the commission of
a felony; and violation of the Street Gang Terrorism and Prevention Act (the
“Street Gang Act”), OCGA § 16-15-1 et seq. Poole and McGhee were charged
in all of these counts except those charging the firearm-possession offenses and
the felony murder counts predicated thereon.
Butler, Avery, and Poole were tried jointly in May 2018; McGhee, who
had pled guilty, testified for the State. The jury acquitted all three defendants
of malice murder but found them guilty of all the other counts. Butler and
Avery were each sentenced to life in prison without the possibility of parole for
felony murder predicated on the aggravated assault of Jordan; a consecutive
20-year term of imprisonment for the aggravated assault of Chad; a
consecutive 20-year term for the Street Gang Act violation; and two
consecutive five-year terms for the firearm-possession offenses. The other
counts merged or were vacated by operation of law. Butler and Avery each
filed a timely motion for new trial in June 2018, and each amended his
respective motion in July 2019. After a joint hearing, the trial court denied
both motions by separate orders entered on February 26, 2020. Butler and
Avery each filed a timely notice of appeal, and their appeals were docketed to
the August 2020 term of this Court and submitted for decisions on the briefs.
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Nashea Poole, whom Jordan had met through the “Plenty of Fish”
dating website. According to Chad, McGhee and Poole gave
“unusual” responses when asked about where they lived, and they
were noticeably inquisitive about the layout of the house, trying at
one point to go upstairs. The women also went outside several times,
expressing curiosity about the dog in the backyard, and were on
their phones texting throughout the visit. After approximately an
hour, Jordan decided to take the women to his house and prepared
to leave.
Shortly thereafter, Chad heard the back screen door slam,
followed by a commotion and a male voice saying, “chill out” or
“watch out.” Chad then heard a gunshot and ran outside, where he
saw Jordan lying on the patio. Chad was then shot several times.
He made his way to the garage, where he found McGhee. Chad
yelled at and began chasing McGhee, who pulled out a gun, pointed
it at Chad, and then fled. Chad survived, but Jordan died of his
wounds. Chad testified that neither he nor his brother had any
weapons at their sister’s home and that, to his knowledge, their
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sister did not keep any weapons there, either.
According to the medical examiner, Jordan’s wounds were
inflicted by a combination of shots fired from a shotgun and a
handgun. This finding was corroborated by the recovery at the scene
of both .22-caliber shell casings ejected from a handgun and a single
shell casing from a shotgun. An investigating officer testified that
one person cannot hold and fire both a shotgun and another gun at
the same time. No weapons were found at the scene.
McGhee, who pled guilty to aggravated assault, testified for the
State as follows: In July or August of 2016, Poole introduced her to
Butler and Avery, who were high-ranking members of the Bloods
gang. McGhee began dating Avery and joined the Bloods; Poole was
a member of the gang as well. During this timeframe, Poole created
a Plenty of Fish account for McGhee for the purpose of “escorting,”
which McGhee described as “basically like prostitution.”
On the evening of the crimes, McGhee went to Butler’s house.
Avery and Poole were there, and the women made preparations to
meet an escorting client. When Poole and McGhee arrived at the
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planned location, however, they became uncomfortable with the
situation and left. The women met back up with Butler and Avery
at a gas station and decided to go meet Jordan, whose photograph
they showed to Butler and Avery. Avery gave McGhee a gun to take
with her.
McGhee and Poole drove to Lithonia, with Avery and Butler
following them for “protection.” By the time the women arrived at
the home, Avery and Butler had disappeared. At the home, McGhee
and Poole sat talking with Jordan and Chad, at one point going to
the backyard to give the dog some water and then returning inside.
Shortly thereafter, the dog began barking, and, when Jordan and
Poole stepped outside, shots rang out. Chad ran outside, and
McGhee retreated to the garage. After a few minutes, Chad ran into
the garage, angrily demanding to know “who the f*** brought you
over here.” McGhee pulled out the gun, and Chad backed off. As
McGhee ran outside, she heard more gunshots and saw Avery
standing in the yard with a gun. McGhee and Poole got into
McGhee’s car and left, and Avery ran away. McGhee testified that
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she did not see Butler.
According to McGhee, she and Poole then went back to Butler’s
house. Avery and Butler were there, and in the house McGhee
noticed two guns, one of which she identified as a shotgun. The
women demanded to know what had happened, and Butler
eventually responded, “he tried to grab the gun and got shot.” Avery
warned McGhee not to call the police, or she would “be the one that
got blamed for it all.”
In addition to the foregoing evidence, the State introduced the
testimony of two law enforcement officers who were qualified as
experts on criminal street gangs. One of these officers testified that
Butler was known to be a founding member of the “Luciano Bloods,”
a subset of the national Bloods gang with its own organized
structure and lengthy track record of violent crime. This officer
testified that the Luciano Bloods use prostitution as “the main
money maker for the gang” and have been known to use online
platforms to lure “johns,” under the pretense of prostitution services,
for the purpose of robbing them. The other officer testified that, in
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investigating the crimes at issue here, he had uncovered gang-
related messages posted by Butler on social media, gang-related text
messages extracted from Avery’s cell phone, and photographs posted
on social media depicting both men wearing Bloods-associated
clothing and flashing Bloods gang signs.
The State also presented evidence that, during a time span
closely coinciding with the shootings, a cell phone used by Butler
was used to communicate with Avery’s and Poole’s cell phones. In
addition, cell tower records showed that, in the hours encompassing
the shootings, the phones associated with Butler, Avery, and Poole
moved from the area near Butler’s College Park home to the area
near the Lithonia crime scene and back again. Butler and Avery
each stipulated to being a convicted felon at the time of the
shootings.
1. Both Butler and Avery challenge the sufficiency of the
evidence supporting their convictions. Butler argues generally that
the evidence was insufficient, and Avery argues more specifically
that because there was no evidence regarding the details of the
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actual shootings, it was impossible to determine whether the
shooters were the initial aggressors or whether, alternatively,
Jordan became aggressive when he saw strangers on the property,
causing the shooters to act in self-defense.
When evaluating challenges to the sufficiency of the evidence
to support criminal convictions 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 v. Virginia, 443 U.S.
307, 319 (99 SCt 2781, 61 LE2d 560) (1979) and Jones v. State, 304
Ga. 594, 598 (820 SE2d 696) (2018)). In addition, as a matter of
Georgia statutory law, “[t]o 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.” OCGA § 24-14-6.
That said, “not every hypothesis is reasonable.” Hamilton v. State,
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309 Ga. 1, 6 (2) (843 SE2d 840) (2020) (citation and punctuation
omitted). “We leave to the jury the resolution of conflicts or
inconsistencies in the evidence, credibility of witnesses, and
reasonable inferences derived from the facts.” Boyd, 306 Ga. at 207.
Likewise, we allow the jury to decide “whether the defense theory .
. . was reasonable and not excluded by the other evidence,”
Hamilton, 309 Ga. at 6 (citation and punctuation omitted).
(a) The evidence presented at trial showed, among other
things, that: McGhee and Poole had connected with the victims
through a dating website they used for prostitution and made plans
to meet with them on the night of the crimes; Butler and Avery, both
convicted felons, met with McGhee and Poole before the women left
to meet the victims, gave McGhee a gun, and followed them to their
meeting; during their visit with the victims, McGhee and Poole acted
strangely, were markedly curious about the layout of the house,
went outside several times, and were frequently texting on their
phones; Avery was present at the crime scene with a gun during the
shootings; McGhee went to Butler’s house after the shootings and
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saw Avery and Butler there with two guns, one of which was a
shotgun; when questioned about the shootings, Butler responded
that someone “got shot” because “he tried to grab the gun”; Avery
told McGhee not to call the police regarding the shootings; cell
phones used by Avery, Butler, and Poole communicated with each
other immediately before, during, and after the shootings; and
during this time frame, these cell phones traveled in a similar path
from the area near Butler’s house to the area near the crime scene
and back. In addition, the evidence showed that Jordan was killed
by shots fired from a shotgun and a handgun, indicating the
presence of two shooters, and that no weapons were recovered from
the scene, which supports Chad’s testimony that neither he nor
Jordan had a weapon at the time of the shootings. This evidence
was sufficient to authorize a rational jury to reject the hypothesis
that Avery and Butler acted in self-defense and to find beyond a
reasonable doubt that both Avery and Butler were guilty, either
directly or as parties to these crimes, see OCGA § 16-2-20, of the
felony murder of Jordan predicated on aggravated assault; the
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aggravated assault of Chad; and the firearm-possession offenses of
which they were convicted. See Boyd, 306 Ga. at 208; Merritt v.
State, 285 Ga. 778, 779-780 (1) (2009) (though evidence was entirely
circumstantial, jury was entitled to reject appellant’s theory that
victim had been shot by unknown intruder). See also Shaw v. State,
292 Ga. 871, 872 (1) (742 SE2d 707 (2013) (“[T]he jury is free to reject
a defendant’s claim that he acted in self-defense.” (Citation and
punctuation omitted.)).
(b) With regard to the Street Gang Act violation, the State was
required to establish:
(1) the existence of a “criminal street gang,” defined in
OCGA § 16-15-3 (2) as “any organization, association, or
group of three or more persons associated in fact, whether
formal or informal, which engages in criminal gang
activity”; (2) the defendant’s association with the gang; (3)
that the defendant committed [any of several enumerated
criminal offenses, including those “involv[ing] violence,
possession of a weapon, or use of a weapon”]; and (4) that
the crime was intended to further the interests of the
gang.
Boyd, 306 Ga. at 209 (citations and punctuation omitted). As to the
fourth element, which is the focus of Avery’s and Butler’s
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contentions, “the State must prove that the commission of the
predicate act was intended to further the interests of the gang.” Id.
at 210 (citation and punctuation omitted). This element requires
some nexus between the act and the intent to further street gang
activity. Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497)
(2009).
Avery and Butler both argue that the State failed to prove that
the shootings were committed with an intent to further the interests
of a gang, relying heavily on the fact that McGhee testified that
there was no plan to commit the shootings and that the incident was
unrelated to their gang. However, where there is other evidence
supporting an inference that criminal conduct was committed with
the intent to further the interests of a gang, a witness’ disavowal of
such an intent does not necessarily compel a finding that such intent
was lacking. See Boyd, 306 Ga. at 211. For example, evidence of a
defendant’s association with a gang and participation in its
activities before and during the crimes charged may “provide the
required nexus between his criminal acts and the intent to further
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the gang’s interests.” Haynes v. State, 298 Ga. 339, 342-343 (a) (781
SE2d 777) (2016); see also Rodriguez, 284 Ga. at 807 (“Management
of or participation with others in . . . criminal street gang activity
necessarily implies knowledge of the gang’s criminal activities and
a specific intent to further its criminal purposes.”). In addition,
there was evidence that the gang used prostitution and robbery of
“johns” to finance the gang and that the shootings resulted from that
sort of activity. See Stripling v. State, 304 Ga. 131, 134 (1) (b) (816
SE2d 663) (2018). Likewise, discussions between fellow gang
members after the charged crimes, which may include attempts to
avoid getting caught, may offer further evidence of a nexus between
the crimes and the gang’s interests. See Boyd, 306 Ga. at 211-212.
Here, the evidence, in addition to that described above, showed
that Butler and Avery were high-ranking members of the Bloods
criminal gang, which McGhee and Poole had joined as well; the
Luciano Bloods, an organized subset of the Bloods that Butler had
helped establish, had a history of violent criminal activity; and the
Luciano Bloods employed prostitution as a primary means of
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funding its operations and had in the past used women to lure
“johns” to rob them.
Additionally, as noted above, McGhee and Poole connected
with the victims through a dating website they used to set up
prostitution meetings; Butler and Avery were present with the
women immediately before and after the shootings and were in
communication with them throughout the period during which the
shootings took place; and following the shootings, Butler and Avery
discussed the crimes with the women and warned them not to talk
to the police. Viewed as a whole, this evidence was sufficient to
establish a nexus between the charged crimes and an intent to
further the gang’s interests, and, accordingly, the evidence was
sufficient to authorize a rational trier of fact to find that Appellants
violated the Street Gang Act.
2. Butler contends that the trial court erred in admitting
evidence of his gang participation and the other gang-related
testimony. Decisions regarding the admission of evidence are
committed to the discretion of the trial court and are not to be
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disturbed absent an abuse of that discretion. See Anglin v. State,
302 Ga. 333, 335 (2) (806 SE2d 573) (2017).
Butler first maintains that he was charged with the Street
Gang Act violation purely to justify the admission of inflammatory
gang-related evidence and thereby enhance the chances that the
jury would convict him of the other charged crimes. However, as the
grand jury returned an indictment charging a violation of the Street
Gang Act, the State was merely executing its duty to “prosecute all
indictable offenses.” OCGA § 15-18-6 (4). And we have already
concluded that the evidence was sufficient to support his conviction
for this offense. Butler’s claim in this regard, thus, has no merit.
Butler next asserts that the gang evidence should have been
excluded because its highly prejudicial nature substantially
outweighed its probative value. See OCGA § 24-4-403 (“Relevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.”). We disagree. While
gang evidence may be prejudicial, “it is only when unfair prejudice
substantially outweighs probative value that [Rule 403] permits
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exclusion.” Anglin, 302 Ga. at 337 (emphasis in original) (citation
and punctuation omitted). Here, the gang evidence was not just
highly probative but indeed necessary to prove several of the
essential elements of the Street Gang Act offense – the existence of
the gang, Butler’s participation therein, and the nexus between the
crimes and the gang’s interests. Moreover, as we have noted, the
exclusion of evidence under Rule 403 is an “extraordinary remedy,
which should be used only sparingly, and the balance should be
struck in favor of admissibility.” Id. (citation and punctuation
omitted). Accordingly, we discern no abuse of discretion in the trial
court’s decision to admit the gang evidence. See Armstrong v. State,
S20A1364, slip op. at 13 (2) (b) (2020) (no abuse of discretion in
admitting gang evidence); Anglin, 302 Ga. at 337 (same).
3. Avery contends that the trial court abused its discretion in
admitting Poole’s recorded interview with the police because the
interrogating officer commented upon an ultimate issue in the case.
Specifically, Avery asserts error with regard to the following
statement by the officer:
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[D]o you know what—what I mean when I say party to a
crime, do you know what that means, have you ever heard
anybody talk about that? Even though I know that you
and [McGhee] didn’t kill these guys, because you’re a
party to a crime, at this point you’re being charged just
the same as if you stood there and pulled the trigger
yourself.
According to Avery, this statement amounted to opinion testimony
on the ultimate issue of his and Butler’s guilt.
As an initial matter, while Avery objected to the admission of
Poole’s interview on other grounds, he did not raise an objection on
the ultimate-issue ground, and thus this enumeration is reviewable
only for plain error. See Brewner v. State, 302 Ga. 6, 12 (III) (804
SE2d 94) (2017). Regardless of the standard of review, however,
there was no error in the trial court’s admission of the complained-
of statement. First, the officer’s statement does not constitute
“ultimate issue” opinion testimony. See Butler v. State, 292 Ga. 400,
405-406 (3) (a) (738 SE2d 74) (2013) (interrogating officer’s
comments for the purpose of eliciting a response from a suspect do
not amount to improper opinion testimony). And, even if they did,
the current Evidence Code – unlike the former Code – does not
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generally prohibit lay witness testimony on “ultimate issue”
grounds. See OCGA § 24-7-704 (a); Mack v. State, 306 Ga. 607, 610
(2) (832 SE2d 415) (2019) (even if detective’s comments “touched on
the ultimate issue in the case,” they were not subject to exclusion
under OCGA § 24-7-704 (a)). Thus, this enumeration is without
merit.
Judgments affirmed. All the Justices concur.
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