Travion Willis v. State ( 2021 )

THIRD DIVISION
DOYLE, P. J.,
REESE, P. J., and BROWN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
April 1, 2021
In the Court of Appeals of Georgia
A21A0425. WILLIS v. THE STATE.
BROWN, Judge.
Travion Willis appeals from his convictions of armed robbery, kidnapping,
aggravated assault, possession of a firearm during the commission of a crime, and
theft by taking a motor vehicle. He contends that the State failed to disprove beyond
a reasonable doubt his affirmative defense of coercion and that the trial court erred
by admitting into evidence his inculpatory statement to police. We affirm.
This is the second appearance of this case before this Court. In its first
appearance, this Court affirmed the trial court’s grant of a new trial to Willis and his
co-defendant Christopher Wakefield, and dismissed as moot Willis’ challenge to his
sentence. See State v. Wakefield, 324 Ga. App. 587 (751 SE2d 199) (2013)
(“Wakefield I”). Both men were retried together and again convicted. In Wakefield v.
State, ___ Ga. App. ___ (Case No. A19A0655) (May 17, 2019) (unpublished)
(“Wakefield II”), we affirmed Wakefield’s conviction and summarized the evidence
as follows:
Viewed in the light most favorable to the jury’s verdict, the
evidence shows that in June 2008, Joshua Askew was employed by his
father’s amusement gaming company, which placed coin-operated
gaming machines in bars, restaurants, and gas station convenience
stores, and split the money from these games with the venues. One of
Askew’s responsibilities with the company was to collect the proceeds
from the games and then divvy them up with the venue owner.
On the afternoon of June [16], 2008, Askew had collected
approximately $8,000 from five venues when he arrived at a [Shell] gas
station at the intersection of Highways 85 and 314 in Fayetteville. Then,
after collecting the money from that station’s games, Askew exited the
convenience store and walked toward his SUV, while looking down at
his mobile phone. But before Askew reached his vehicle, he was
confronted by two men, one of whom—later identified as Travion
Willis—pointed a handgun at his chest and demanded that he turn
around. Askew complied, and Willis took the money from his pocket
and the other man—later identified as Wakefield—filched his phone.
Willis then ordered Askew to get into the trunk of a silver Chevrolet
Impala parked next to Askew’s SUV, and Askew again complied.
2
Subsequently, Willis got behind the wheel of the Impala,
Wakefield entered Askew’s SUV, and both vehicles then left the gas
station. But within only a few minutes, the Impala came to a halt as a
result of Willis rear-ending Askew’s SUV. And seizing the opportunity
to escape, Askew pulled the interior-trunk release, jumped out of the
Impala’s trunk, and ran to the vehicle of another motorist, who had
stopped because of the accident, to ask for help. Wakefield, still driving
Askew’s SUV, and Willis, still driving the Impala, sped off. Askew and
the assisting motorist briefly pursued them but quickly lost contact with
the vehicles and, thus, returned to a nearby shopping center parking lot
to wait for the police.
Shortly thereafter, a dispatched police officer arrived. And while
taking Askew’s statement, the officer began receiving calls about a
vehicle matching Askew’s description of the silver Impala being seen in
a neighborhood a short distance away. Immediately, the officer went to
the scene and found a silver Impala—with a Florida license plate and its
engine still running—that had apparently become stuck in a drainage
culvert while attempting to back out of a driveway. A resident of a
neighboring home informed the officer that she had seen the driver exit
the vehicle and then attempt to break the driver-side window with a rock
after seemingly locking himself out. But upon being unable to do so, the
driver fled into the nearby woods. Given this information, the officer
radioed for a perimeter to be set up in the area, and not long after
receiving several calls about a suspicious person running through the
woods, the police apprehended Willis. Additionally, in searching the
Impala, the first responding officer recovered a handgun, and, around
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the same time, police found Askew’s SUV abandoned less than a mile
away.
After running the Impala’s license plate through the GCIC, the
investigating police officers determined that the vehicle had been rented
from a company in Jacksonville, Florida, by Wakefield’s aunt, who later
reported it stolen. And during the officers’ questioning of Willis, he
admitted being involved in the armed robbery and kidnapping of Askew
but claimed that Wakefield forced him to participate in the crimes.
Approximately one week later, police officers arrested Wakefield, who
at the time was still in possession of some of the cash stolen from
Askew.
The State later charged Wakefield and Willis, via the same
indictment, with one count each of armed robbery, kidnapping,
aggravated assault, possession of a firearm during the commission of a
crime, and theft by taking. The case then proceeded to trial, during
which the State presented the evidence discussed supra. In addition,
Wakefield testified in his own defense. Specifically, although he
acknowledged that his aunt rented a car on his behalf so he could drive
to the Atlanta area to see his child, he claimed the car was stolen from
a gas station and that he neither knew Willis nor had anything to do with
the armed robbery and kidnapping.
(Footnote omitted.) Wakefield II, Slip Opinion at 1-4.
4
Willis, who was 17 at the time of the armed robbery, also testified in his own
defense and claimed that he met Wakefield sometime in 2008, but did not know his
name; Willis knew Wakefield only as “boss” or “boss man.” Willis saw Wakefield
at least ten times between March 2008 and June 2008, including the evening before
the armed robbery, June 15, 2008, when Willis agreed to go with Wakefield the next
day to meet up with some girls. Willis could not recall the date but acknowledged that
Wakefield had previously asked him to “join[ ] [Wakefield] to rob somebody,” but
Willis said no because he was on probation and did not want to go back to jail.
On the morning of June 16, 2008, Wakefield picked up Willis and the two
drove around in the Impala for “[a] few hours,” waiting for the girls to call. They
stopped at several places including the Shell gas station, where Willis heard the
cashier tell Wakefield, “don’t hurt him or nothing.” Willis thought the cashier was
talking about him and took it as a joke. The two left the Shell gas station, visited a
second gas station, and then a Big Lots, where Willis waited in the car for thirty
minutes while Wakefield went inside the store. The two continued driving around and
then Wakefield received a call and responded that he was on the way. At that point,
the two men returned to the Shell gas station and committed the armed robbery and
kidnapping of Askew.
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According to Willis, when the two men pulled up to the gas station, Wakefield
pulled out a gun and said to Willis, “you see that cracker right there, put him in the
car; put him in the trunk of the car.” Willis responded that he “want[ed] nothing to
do with that.” According to Willis, Wakefield pulled a second gun and responded
“you ain’t got no choice; if you don’t, I’ll kill him, I’ll do it myself.”1 Willis testified
that Wakefield pointed the gun at him; that he was scared for his life; and that he did
not want to rob Askew, but that Wakefield forced him to do it. Willis later testified
that Wakefield told him he would kill him, and that Willis thought about running but
was scared Wakefield would shoot him in the back. After the two vehicles fled the
gas station, Willis testified that Wakefield came up next to him in Askew’s SUV,
pointed his gun through the window, and then cut in front of Willis, at which point
the two vehicles collided.
Willis testified that he told police that Wakefield threatened him and that he
was scared but acknowledged that he lied to police about Wakefield’s identity
1
Askew testified that only Willis had a gun during the robbery and that he did
not see a second gun, but acknowledged on cross-examination that he did not know
whether Wakefield had a gun. During their investigation, police recovered only one
gun from the Impala. Willis testified that Wakefield had a gun, but that he did not
know if the gun was on Wakefield’s person or inside the Impala, though he
“doubt[ed] if [Wakefield] left it in the car.” At the time Willis pointed his gun at
Askew, Wakefield was not pointing a gun at Willis.
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because he was afraid Wakefield would come after his family; Willis told police that
“Jerry” was involved in the incident. He admitted to participating in the robbery but
told police he “felt [he] didn’t really have a choice.” Willis also stated that he ran
from the abandoned Impala and police because he was scared that he would be
arrested on an outstanding warrant for violating “misdemeanor probation.”
1. Willis asserts that insufficient evidence supports his convictions because the
State did not disprove coercion. We disagree.
Under OCGA § 16-3-26, a person cannot be guilty of any crime except murder
“if the act upon which the supposed criminal liability is based is performed under
such coercion that the person reasonably believes that performing the act is the only
way to prevent his imminent death or great bodily injury.” “Coercion is an affirmative
defense, and the burden rests with the State to disprove coercion beyond a reasonable
doubt.” (Citation and punctuation omitted.) Blocker v. State, 265 Ga. App. 846, 851
(5) (595 SE2d 654) (2004). “Whether a defendant is coerced into acting, however, is
a question for the trier of fact.” Engrisch v. State, 293 Ga. App. 810, 812 (668 SE2d
319) (2008).
In this case, the State elicited testimony from Willis that he had several
opportunities throughout the incident to ask for help from police because he feared
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for his life. Willis acknowledged that he abandoned the Impala in front of a house
with a police car, but instead of running up to the house to ask for help, he ran from
the house. He also confirmed that after running from the Impala, he came upon a
house where the occupant allowed him to use her telephone. Instead of calling police
as he feared for his life, Willis called his aunt, told her he had been out swimming
with friends and was stranded, and asked her to pick him up. As Willis waited for his
aunt at the home, a police car pulled up; rather than speaking with police, Willis ran.
When police apprehended Willis a short time later, he did not tell them that he had
been coerced by Wakefield but instead lied and told them that “the other person
involved [in the incident] was named Jerry” and then lied about where Jerry lived.
Willis also lied to police in his description of Wakefield. Willis claimed that he lied
in order to protect his family from Wakefield but admitted that Wakefield never
threatened his family.
A jury is not required to believe the defendant’s testimony that he was coerced.
See Engrisch, 293 Ga. App. at 812. See also Blocker, 265 Ga. App. at 852 (5) (it is
jury’s prerogative to disbelieve a defendant’s testimony; such is the assumed risk
when a defendant chooses to testify); Aleman v. State, 227 Ga. App. 607, 609 (1) (489
SE2d 867) (1997). Although Willis claimed at trial and claims on appeal that he
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“attempted to flee at the earliest possible opportunity when he did not believe he
would be immediately murdered by Wakefield,” the jury was not required to believe
him. We find that a reasonable finder of fact could conclude that the State disproved
Willis’ coercion defense based upon his repeated failures to seek help from police
despite multiple opportunities to do so.2 See, e.g., Jackson v. State, 354 Ga. App. 225,
228 (1) (840 SE2d 609) (2020) (State used opportunity to escape to disprove
coercion).
2. Willis contends that the trial court erred in admitting his custodial statement
because he was a minor and not afforded the opportunity to have his family or an
attorney present. We disagree.
“The question of a voluntary and knowing waiver depends on the totality of the
circumstances and the state has a heavy burden in showing that the juvenile did
understand and waive his rights. Confessions of juveniles are scanned with more care
and received with greater caution.” (Citation and punctuation omitted.) Nelson v.
2
Although not enumerated as error, Willis contends that the trial court should
have granted him a new trial pursuant to OCGA §§ 5-5-20 and 5-5-21, the “general
grounds.” We disagree. “[T]he trial court alone is the ‘arbiter of the general grounds.’
Having found the evidence sufficient above, we have no basis to disturb the trial
court’s denial of [Willis’ amended] motion for new trial on the general grounds.”
(Citation and punctuation omitted.) Wilcox v. State, ___ Ga. ___ (2) (Case No.
S20A1173, decided November 16, 2020).
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State, 289 Ga. App. 326, 328 (1) (657 SE2d 263) (2008). See also Lester v. State, ___
Ga. ___ (2) (849 SE2d 425) (2020). Willis contends that the admissibility of his
statement should be analyzed using the nine factors set forth in Riley v. State, 237 Ga.
124, 128 (226 SE2d 922) (1976). But, our Supreme Court has “recognized that Riley
does not apply to the admissibility of statements by persons who have reached the age
of 17 because such persons are no longer considered juveniles by our criminal justice
system.” Woodard v. State, 277 Ga. 49, 50 (2) (586 SE2d 330) (2003) (defendant was
17 years and 10 months old at the time he made his statement to police), citing
Reynolds v. State, 275 Ga. 548 (3) (569 SE2d 847) (2002).3 Accordingly, Willis’
3
We note that Reynolds cited the pre-amendment version of OCGA § 15-11-2,
which defined “[c]hild” as “any individual who is: (A) Under the age of 17 years; [or]
(B) Under the age of 21 years, who committed an act of delinquency before reaching
the age of 17 years, and who has been placed under the supervision of the court or on
probation to the court[.]” OCGA § 15-11-2 (2). See Reynolds, 275 Ga. at 548 (3), n.4.
The current version of OCGA § 15-11-2 pertinently defines “[c]hild” as “any
individual who is: (A) Under the age of 18 years; [or] (B) Under the age of 17 years
when alleged to have committed a delinquent act[.]” OCGA § 15-11-2 (10). A
“[d]elinquent act” is defined, in pertinent part, as “[a]n act committed by a child
designated a crime by the laws of this state, or by the laws of another state if the act
occurred in that state, under federal laws, or by local ordinance, and the act is not an
offense applicable only to a child or a juvenile traffic offense[.]” OCGA § 15-11-2
(19) (A). Reynolds also cited subsections (b) and (d) of the pre-amendment version
of OCGA § 15-11-28 which defined “child” as an individual 13 to 17 years of age;
the current version of that statute, OCGA § 15-11-560, retains that definition.
Accordingly, even under the current versions of OCGA §§ 15-11-2 and 15-11-28,
Riley would not apply here because Willis was not under the age of 17 when he
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statement to police “was admissible if made voluntarily, without being induced by
hope of benefit or coerced by threats.” Woodard, 277 Ga. at 50 (2).
During the Jackson-Denno hearing, it was determined that Willis, like the
defendant in Woodard, was 17 years and 10 months old at the time of the incident.
The lead detective testified that Willis was read his Miranda rights twice: Once at the
time he was apprehended because “he was anxious to talk” to the arresting officer
about the incident, and then again two to three hours later at the police station when
the detective conducted a custodial interview. Willis signed the waiver form, and
indicated that he understood his rights. The detective confirmed that he did not offer
Willis any hope of benefit, threaten him in any way, or force him to speak. In his
statement, Willis admitted to participating in the armed robbery and kidnapping of
Askew, but said that “Jerry had held a gun to his head and forced him to commit the
[crimes].” The detective opined that based on his experience in conducting over 200
committed the crimes at issue. Even if Riley were to apply here, however, we would
find no error in the trial court’s conclusion that Willis knowingly and voluntarily
waived his rights, as reflected in the facts established during the Jackson-Denno
hearing, discussed in greater detail later in this division, infra. See Lester, ___ Ga. at
___ (2). See also Murray v. State, 276 Ga. 396, 397-398 (2) (578 SE2d 853) (2003)
(applying Riley factors and concluding that trial court did not abuse its discretion in
admitting statement of defendant, who was 15 years of age at the time of his custodial
interrogation; in the ninth grade; fully advised of his Miranda rights; informed why
he was custody; and did not ask to speak with his parents).
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custodial interviews, Willis understood the Miranda warnings, his predicament, and
what was going on “just as well as an adult.”
The trial court noted that Willis was just shy of 18 years old, and ruled that his
statement was freely and voluntarily given; that he had been properly advised of his
Miranda rights; that he made a knowing and intelligent waiver of those rights; and
that he was not offered any hope of benefit or threatened in any way. “[U]nless clearly
erroneous, a trial court’s findings as to factual determinations and credibility relating
to the admissibility of the defendant’s statement at a Jackson-Denno hearing will be
upheld on appeal.” (Citations and punctuation omitted.) Johnson v. State, 301 Ga.
707, 711 (III) (804 SE2d 38) (2017). Under the totality of the circumstances, the trial
court did not err by finding that Willis freely, knowingly, and voluntarily waived his
rights and that his custodial statement was admissible at trial. See Woodard, 277 Ga.
at 50-51 (2) (affirming trial court’s admission of defendant’s custodial statement, and
rejecting defendant’s claim that it was not freely and voluntarily given because no
attempt was made to locate his parents and he was not asked if he wanted a parent or
guardian present).
Judgment affirmed. Doyle, P. J., and Reese, P. J., concur.
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