Rice v. State ( 2021 )

In the Supreme Court of Georgia
Decided: April 5, 2021
S21A0314. RICE v. THE STATE.
MCMILLIAN, Justice.
Appellant Malik Deshawn Rice appeals his convictions for
felony murder and other related crimes in connection with the
shooting death of Clarence Gardenhire. 1 Rice argues on appeal that
1 Gardenhire was killed on August 19, 2013. On November 21, 2013, a
DeKalb County grand jury indicted Rice and his co-defendant Contevious
Stepp-McCommons for malice murder, felony murder predicated on
aggravated assault, two counts of aggravated assault, possession of a firearm
during the commission of a felony, and criminal attempt to commit armed
robbery. At a joint trial from February 10 to 13, 2015, a jury acquitted Rice and
Stepp-McCommons of malice murder but returned verdicts of guilty on all
other charges. On February 23, 2015, the trial court sentenced Rice to serve
life in prison without the possibility of parole for felony murder, five years for
possession of a firearm during the commission of a felony, thirty years for
criminal attempt to commit armed robbery, and twenty years for the
aggravated assault of Jamal Perry, all to be served consecutively. The
remaining count of aggravated assault against Gardenhire merged into the
felony murder count for sentencing purposes. This Court affirmed Rice’s co-
defendant’s convictions in Stepp-McCommons v. State, 309 Ga. 400 (845 SE2d
643) (2020).
Rice filed a motion for new trial on February 27, 2015, and the motion
was amended on September 26, 2016, and January 31, 2020. After hearings on
the trial court committed plain error in failing to charge the jury on
accomplice corroboration and that his conviction for aggravated
assault should have merged into his conviction for criminal attempt
to commit armed robbery. Discerning no plain error, we affirm Rice’s
convictions, but we vacate his conviction and sentence for
aggravated assault because we agree that it should have merged
with his conviction for criminal attempt to commit armed robbery
under the facts of this case.
With regard to Rice, the evidence at trial showed the following. 2
Rice placed an ad on Craigslist to sell a cell phone and told his
girlfriend, Ashante Barker, that he planned to meet the person who
responded to his ad at an abandoned house and rob the would-be
purchaser with the help of another person. While one person would
pretend to sell the cell phone, the other would hide in the woods,
November 8, 2017, and January 11, 2018, the trial court denied the amended
motion for new trial on August 4, 2019. Rice timely filed a notice of appeal. The
case was docketed in this Court to the term beginning in December 2020 and
was orally argued on February 3, 2021.
2 Additional facts underlying this case are set out in Stepp-McCommons,
309 Ga. at 400-02 (1).
2
emerging later to commit the robbery. Barker testified that on the
day of the shooting, Rice texted her to complain that the people with
whom he was communicating all wanted to meet in a public place,
but that he was still trying to “set [people] up off Craigslist” and was
waiting for someone to send him the address of the abandoned
house.
On the night of the shooting, Rice went to a party near the
arranged meeting location, and one of the guests, Dexter Martin,
testified that Rice asked him if he wanted “to do a jugg.” Martin
declined. Rice’s co-defendant, Contevious Stepp-McCommons, who
was also at the party, testified that Rice asked him to help with a
meeting that night. Stepp-McCommons agreed to go with Rice in
exchange for $1,000 Stepp-McCommons testified that his cousin
gave Rice a gun to carry with him to the meeting, and Rice gave the
gun to Stepp-McCommons. Martin later observed Stepp-
McCommons and Rice leave the party. 3
3Martin did not specify whether the two left the party together or
separately.
3
Stepp-McCommons testified that Rice also used the term “jugg”
when he described the proposed meeting, and both Stepp-
McCommons and Martin said that they understood the term to
mean a transaction to sell cell phones, not a robbery. However,
Barker told the jury that when she used the term “jugg” in a text to
Rice that day, she meant a robbery. And a detective with the DeKalb
County Police Department testified based on his eight years of police
experience in DeKalb County that “[a] jugg . . . 99.9% of the time
means a robbery.”
Jamar Perry testified that he responded to a Craigslist ad from
someone selling a cell phone, and arranged to meet at a location
chosen by the seller to make the sale, which turned out to be a “very
dark,” abandoned house. Gardenhire accompanied Perry to the
meeting. Stepp-McCommons testified that when he and Rice got to
the house, Rice hid behind a tree near the house while Stepp-
McCommons spoke with Perry and Gardenhire. Perry testified that
he saw and communicated with only one man. Although Perry did
not identify this man at trial, his description of the clothes the man
4
was wearing matched those Martin said Stepp-McCommons was
wearing that night. Perry said that during their exchange, the man
pulled out a gun and told Perry and Gardenhire to “give it up, then.”
Stepp-McCommons stated at trial that he pulled out a gun at the
meeting and shot Gardenhire multiple times after Gardenhire made
a sudden movement. Gardenhire died of the resulting gunshot
wounds.
The two co-defendants then fled through the surrounding
neighborhood, and the homeowner of a house near the crime scene
found a black cell phone in her backyard a short time later. Law
enforcement officers subsequently determined that the phone
number of that device belonged to Rice. Martin testified that he saw
Stepp-McCommons and Rice return to the house where the party
was being held about 15 to 30 minutes after they left. He said that
Rice looked “terrified” and told him that “the deal went wrong;
[Stepp-McCommons] killed the old man.”
Barker was later arrested for making false statements in
connection with the investigation into Gardenhire’s death, and on
5
the day after her arrest, someone identifying himself as Rice called
the lead detective in the case to ask whether Barker could be granted
immunity if Rice turned himself in to the police. After being
informed that the detective lacked authority to make such a deal,
the caller stated, “you won’t be able to find me[;] I’ll be like . . . a fly
in the wind.” However, the identity of this caller could not be
verified. When Rice was arrested in North Carolina several weeks
later, a law enforcement officer asked Rice if he was going to try to
clear his name. Rice responded in the negative, stating he would “do
time for this because he was the one [who] planned it.”4
1. Rice asserts that because Barker and Stepp-McCommons
were accomplices and Barker’s testimony was the only evidence
supporting that he planned to commit robbery, the trial court plainly
erred by failing to charge the jury that the testimony of an
4 Rice does not contest the sufficiency of the evidence to support his
convictions, and we no longer conduct a sua sponte sufficiency review in non-
death penalty cases such as this one, which was docketed to the term of this
Court beginning in December 2020. See Davenport v. State, 309 Ga. 385, 399
(4) (b) (846 SE2d 83) (2020).
6
accomplice requires corroboration. See Walter v. State, 304 Ga. 760,
766 (3) (b) (822 SE2d 266) (2018) (“It is error to fail to give a jury
instruction on accomplice liability where there is slight evidence
supporting a finding that a witness was an accomplice.”). Instead,
the trial court instructed the jurors that the testimony of a single
witness, if believed, was sufficient to establish a fact and that
“[g]enerally, there is no legal requirement of corroboration of a
witness provided you find the evidence to be sufficient.”
As Rice notes, the State conceded at the hearing on the motion
for new trial that the failure to give the accomplice charge was clear
error, although the prosecutor asserted that no harm resulted from
it. The trial court agreed that any error in omitting the accomplice
charge likely did not affect the verdict and thus found no plain error.
In addition, the trial court found sua sponte that Rice had implicitly,
but not affirmatively, waived his claim of plain error, and Rice also
challenges that finding on appeal.
Because Rice neither requested an accomplice charge nor
objected on this ground to the single-witness charge as given, we can
7
only review the omission of an accomplice charge for plain error. See
Anderson v. State, 309 Ga. 618, 623 (3) (847 SE2d 572) (2020).
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. Satisfying all four prongs of this standard is
difficult, as it should be.
Hill v. State, 310 Ga. 180, 194 (11) (a) (850 SE2d 110) (2020).
Pretermitting whether the trial court correctly determined
that Rice properly waived this argument 5 and whether the evidence
supported that Barker was an accomplice, we conclude that Rice
cannot establish plain error arising from the trial court’s failure to
give the accomplice charge in this case. The trial court clearly erred
in failing to give the charge in light of the fact that Rice’s co-
defendant, Stepp-McCommons, testified at trial. See Doyle, 307 Ga.
at 613 (2) (b); State v. Johnson, 305 Ga. 237, 240 (824 SE2d 317)
(2019); Stanbury v. State, 299 Ga. 125, 131 (2) (786 SE2d 672)
5 We note that neither the District Attorney nor the Attorney General
defend the trial court’s sua sponte waiver ruling.
8
(2016). However, despite this clear and obvious error, the record
demonstrates that the error likely did not affect the outcome of
Rice’s trial, as required under the third prong of the plain-error test.
The evidence that Rice participated in the crimes was
substantial completely apart from Stepp-McCommons’s and
Barker’s testimony. This evidence included that Perry made plans
to purchase a cell phone from someone on Craigslist, and the seller
arranged a meeting at what turned out to be a dark, abandoned
house. Shortly before the meeting that night, Rice asked Martin to
accompany him and to do “a jugg,” a term a police detective testified
meant a robbery. Martin declined but later saw Rice and Stepp-
McCommons leave the party. Rice’s defense at trial was that he
stayed across the street during the meeting, 6 and Perry testified that
he saw and spoke only to someone matching Stepp-McCommons’s
description, raising an inference that Rice concealed himself from
the victims. After Stepp-McCommons confronted Perry and
6 Although closing arguments were not transcribed, Rice’s trial counsel
testified about their defense strategy at the motion for new trial hearing.
9
Gardenhire with a gun, which led to the shooting, Stepp-
McCommons and Rice went back to the party, and Rice’s cell phone
was found shortly after the shooting in the backyard of a house near
the crime scene. Martin saw Stepp-McCommons and Rice return to
the party, not long after they left, and heard Rice say that the deal
went wrong when Stepp-McCommons killed “the old man.” Rice
subsequently left the state. Also, the jury could infer that Rice was
the person who called the lead detective to offer to surrender himself
in exchange for immunity for Barker, and when Rice was later
arrested, he admitted that he expected to serve time because he had
planned the crime. On top of all that, even assuming that Barker
was an accomplice, the testimony of one accomplice can corroborate
that of another accomplice, see Hurston v. State, __ Ga. __, __ (3) (c),
2021 Ga. LEXIS 26, **22-23 (Case No. S20A1223, decided Feb. 15,
2021), so the jury could have found the testimony mutually
corroborating.
Because this evidence constitutes “substantial and consistent
evidence” showing Rice’s participation in the crimes, we conclude
10
that the trial court’s failure to give the accomplice charge likely did
not affect the outcome of his trial. See Hawkins v. State, 304 Ga. 299,
303 (3) (818 SE2d 513) (2018) (even where trial court gave the single-
witness charge, the failure to give the accomplice charge did not
likely affect the outcome of the defendant’s trial where there was
substantial and consistent evidence outside of the accomplice’s
testimony, including the defendant’s admission that he shot
someone and other evidence connecting the defendant to shooting);
Hamm v. State, 294 Ga. 791, 797-98 (2) (756 SE2d 507) (2014) (trial
court’s refusal to give requested accomplice charge was harmless
error where defendant admitted that he killed someone and other
independent evidence connected him to the shooting). Cf. Doyle, 307
Ga. at 613-14 (2) (b) (trial court committed plain error in failing to
give accomplice charge where accomplice was the only witness to
identify defendant as a participant of the shooting, and there were
no cell phone records or other testimony placing defendant in the
vicinity of the crime); Stanbury, 299 Ga. at 131 (2) (failure to give
accomplice charge likely affected the outcome of the trial where
11
accomplice’s testimony was the only evidence affirmatively
identifying defendant as the second man involved in the crime).
Thus, Rice has failed to show plain error.
2. The indictment charged Rice, individually and as a party to
a crime, with the offense of criminal attempt to commit armed
robbery under OCGA § 16-4-1 against Perry and Gardenhire. It also
charged the co-defendants, individually and as parties to a crime,
with the offense of aggravated assault against Perry in violation of
OCGA § 16-5-21. Rice contends that his conviction for aggravated
assault should have merged into his conviction for attempted armed
robbery, and the State conceded at the motion for new trial hearing
that merger was appropriate.7
Because we agree that the convictions should have merged for
sentencing, we vacate Rice’s conviction and sentence for aggravated
assault. See Reeves v. State, 309 Ga. 645, 649 (4) (847 SE2d 551)
7 In denying the motion for new trial, the trial court ruled that the
merger issue was moot because it had been corrected by a nunc pro tunc order
issued on February 23, 2015. However, that ruling was error because the
February 23, 2015 nunc pro tunc order did not merge the two offenses,
maintained both convictions, and ran the sentences consecutively.
12
(2020); Thomas v. State, 298 Ga. 106, 112 (3) (779 SE2d 616) (2015).
Judgment affirmed in part and vacated in part. All the Justices
concur.
13