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Platt v. the State , 335 Ga. App. 49 ( 2015 )


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  •                                FOURTH DIVISION
    BARNES, P. J.,
    RAY and MCMILLIAN, JJ.
    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.
    http://www.gaappeals.us/rules
    October 27, 2015
    In the Court of Appeals of Georgia
    A15A1608. PLATT v. THE STATE.
    BARNES, Presiding Judge.
    This case arises out of a gunfight that resulted in the death of two of the
    shooters. Based on circumstantial evidence of his role as a party to the crimes that
    were committed, a jury found James Platt guilty of voluntary manslaughter and other
    related offenses. Platt filed a motion for new trial, as amended, which the trial court
    denied. On appeal, Platt challenges the sufficiency of the evidence to support his
    convictions and contends that the trial court erred by failing to strike a prospective
    juror for cause. For the reasons discussed below, we affirm.
    1. In reviewing Platt’s challenge to the sufficiency of the evidence, we ask only
    “whether, after viewing the evidence in the light most favorable to the prosecution,
    any rational trier of fact could have found the essential elements of the crime beyond
    a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia,
    
    443 U. S. 307
    , 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). The jury rather than
    this Court “resolves conflicts in the testimony, weighs the evidence, and draws
    reasonable inferences from basic facts to ultimate facts.” Butler v. State, 
    284 Ga. App. 802
    , 803 (644 SE2d 898) (2007). “So long as there is some competent evidence, even
    though contradicted, to support each element of the State’s case, the jury’s verdict
    will be upheld.” McLeod v. State, 
    245 Ga. App. 668
    , 669 (1) (538 SE2d 759) (2000).
    Viewed in this manner, the record shows that on the afternoon of September
    28, 2009, Antonio Clark, Jarrett Dixon, and an unidentified third male entered an
    apartment in Sandy Springs where they engaged in a gunfight with several men,
    including Delman Higuera-Hernandez, who lived in the apartment, and his associate,
    Santos Palacios-Vasquez. When the police arrived at the apartment after the gunfight,
    they found the walls riddled with bullet holes and blood stains inside and outside the
    apartment. Shell casings from four different types of ammunition were scattered
    through several rooms. A box of .380 ammunition was in a bedroom closet. Cocaine,
    digital scales, and other drug-related paraphernalia were in the hallway closet, dining
    room, and kitchen.
    Most of the men involved in the gunfight had fled by the time the police
    arrived. However, when the police entered the apartment, they discovered the fatally
    wounded Clark and Palacios-Vasquez on the floor. Clark had been shot in the head
    2
    with a .380 caliber pistol and was taken to the hospital, where he died later that
    evening. Palacios-Vasquez had been shot multiple times, including in the chest with
    a 5.7 mm pistol, and was pronounced dead at the scene. Dixon was no longer at the
    apartment when the police arrived, but a blood stain from the hall bathroom was
    tested and matched his DNA profile.
    Defendant Platt was friends with Clark and Dixon, and he lived with Dixon in
    Decatur. On the day of the gunfight, Clark had been dropped off by his girlfriend at
    the residence of Platt and Dixon. It is undisputed that Platt was not inside the Sandy
    Springs apartment later that day when the gunfight occurred. However, the State
    argued that Platt was an accomplice of Clark, Dixon, and the unidentified third male
    who had entered the apartment and engaged in the gunfight with Palacios-Vasquez
    and his associates. The State contended that Platt had provided his Infiniti for use in
    the encounter and had waited outside the apartment in his silver Grand Prix while the
    other three men went inside. Because no participants or eyewitnesses to the gunfight
    testified at trial, the State relied upon circumstantial evidence gathered by the police
    during their investigation to link Platt to the gunfight, as discussed below.
    Platt’s Infiniti at the Apartment. Clark did not own a car, but would sometimes
    borrow one of Platt’s cars. Platt had an Infiniti sport sedan. After the gunfight, the
    3
    police photographed Platt’s Infiniti parked outside the Sandy Springs apartment as
    part of their processing of the crime scene. After connecting the Infiniti to the case
    and obtaining a search warrant, the police searched the car, which by then had been
    driven back to Platt’s residence, and the police seized a box of 5.7 mm ammunition
    with blue polymer tips from the glove compartment. The State’s expert firearm
    examiner later testified that blue polymer tips are uncommon in pistol rounds.
    Multiple 5.7 mm cartridge cases were recovered from the Sandy Springs
    apartment. The State’s firearm examiner testified that all of the 5.7 mm cartridge
    cases were shot from the same handgun. Palacios-Vasquez was shot with 5.7 mm
    ammunition, and the State’s forensic pathologist extracted a blue polymer tip from
    his chest cavity.
    The Apartment Neighbor. In addition to the Infiniti, Platt had a silver Pontiac
    Grand Prix. Clark’s girlfriend saw the Grand Prix parked outside Platt’s residence on
    the day of the gunfight when she dropped Clark off there.
    A neighbor in the same Sandy Springs apartment building was at home later
    that day when the gunfight occurred. Sometime between 3:30 p.m. and 4:00 p.m., the
    neighbor recalled hearing “unusually loud thumping or noisy sounds” coming from
    another apartment followed by loud footsteps on the outside staircase. The neighbor
    4
    looked out the window and saw two men coming from the direction of the staircase
    jump into the passenger seats of a silver car that had approached the apartment
    building at a high rate of speed. Because the windows of the car were tinted, the
    neighbor was unable to identify the driver, but she was able to generally describe the
    two men who jumped into the car by race, age, and clothing. The car sped off after
    picking up the two men.
    The Grady Hospital Surveillance Footage. The police obtained video
    surveillance footage from Grady Hospital in Atlanta, which was about 17-18 minutes
    from the Sandy Springs apartment, that corroborated the testimony of the apartment
    neighbor. The video footage showed Platt, Dixon, and an unknown male getting out
    of a silver car, consistent in appearance with a Grand Prix, outside Grady Hospital at
    4:08 p.m. Platt and the unknown male are then seen carrying Dixon into the hospital,
    where he was treated for a gunshot wound to his chest. The appearance of Dixon and
    the unknown male on the video was consistent with the neighbor’s general
    description of the men who jumped into the silver car outside the apartment.
    Platt left the hospital after dropping off Dixon for treatment. A white t-shirt
    with Dixon’s blood on it was later found at Platt’s residence when the police executed
    a search warrant there.
    5
    The Cell Phone Records. The police obtained cell phone records for several
    phones associated with the gunfight, including cell phones linked to Dixon and Clark.
    The records reflected that on the day of the gunfight, Dixon sent a text message to
    Clark at 3:22 p.m., informing Clark that “we went 2 da apt across da street” and that
    Clark should meet them there. Then, at 3:41 p.m., Clark sent a text message to Dixon
    informing him that an “amigo” was “on the steps” and “we right here already.” Cell
    phone tower information for the two phones indicated that the text messages were
    sent and received in Sandy Springs.
    Calls made to and from a prepaid cell phone with the number 404-510-0981
    appeared on both Clark and Dixon’s cell phone records. Cell phone records for the
    404-510-0981 number showed several calls with Clark and Dixon on the day of the
    gunfight, including a number of calls in quick succession from 3:42 p.m. until 3:51
    p.m., the time period when the gunfight occurred.1
    1
    As previously noted, Clark sent a text message to Dixon at 3:41 p.m.
    informing him of his location, and the Grady Hospital surveillance video showed
    Platt, Dixon, and the unknown male arriving at the hospital at 4:08 p.m. Because
    there was testimony that it would take about 17-18 minutes to travel to Grady
    Hospital from the Sandy Springs apartment, the gunfight would have occurred
    between approximately 3:41 p.m. and 3:51 p.m.
    6
    Cell phone tower information for the 404-510-0981 number showed that the
    holder of the cell phone was in Sandy Springs at the time of the aforementioned calls,
    and that the phone was pinging off the same cell phone tower as the cell phones of
    Dixon and Clark. The cell phone tower information further showed that, after the
    gunfight occurred, the holder of the phone traveled south to the area of Grady
    Hospital. Additionally, cell phone records for the 404-510-0981 number showed that
    there were two calls with Platt’s girlfriend shortly after 4:00 p.m.
    At trial, the State argued that the prepaid cell phone associated with the 404-
    510-0981 number belonged to Platt. To support its argument, the State relied upon
    the cell phone tower information and the phone records reflecting calls with Clark,
    Dixon, and Platt’s girlfriend.
    Based on the circumstantial evidence of his role in the gunfight, Platt was
    indicted and tried on two counts of malice murder for the shooting deaths of
    Palacios-Vasquez and Clark, and two counts of possession of a firearm during the
    commission of a felony, among other offenses related to the gunfight.2 At the close
    2
    Six other co-defendants were indicted for multiple offenses arising out of the
    gunfight. Dixon was tried with Platt and was convicted of voluntary manslaughter
    and several other crimes. Dixon is not a party to this appeal. Higuera-Hernandez was
    tried jointly with another co-defendant and was convicted of malice murder, felony
    murder, and other offenses. See Higuera-Hernadez v. State, 
    289 Ga. 553
     (714 SE2d
    7
    of trial, the trial court instructed the jury on the charged offenses and on voluntary
    manslaughter as a lesser included offense of the malice murder charges. The court
    also instructed the jury on the law of party to a crime. The jury found Platt guilty of
    two counts of voluntary manslaughter and of the two firearm possession counts.3
    (a) Platt contends that the circumstantial evidence was insufficient to support
    his convictions as a party to the crime of voluntary manslaughter. He maintains that
    the State’s evidence was based “solely on assumptions and inferences” and did not
    prove that he was “waiting in the parking lot for Dixon, Clark, and the unidentified
    male.” Platt further maintains that even if there was evidence from which a jury could
    find that he was parked outside the apartment, the evidence showed nothing more
    than his mere presence at the scene and failed to rule out every other reasonable
    hypothesis except his guilt. We are unpersuaded.
    A jury can find a defendant guilty of voluntary manslaughter
    236) (2011). Whether and to what extent the remaining co-defendants’ cases have
    been resolved is unclear from the record.
    3
    Platt’s remaining convictions were merged into the two voluntary
    manslaughter convictions for sentencing purposes. We do not consider the sufficiency
    of the evidence with respect to the merged offenses. See Nelson v. State, 
    277 Ga. App. 92
    , 96 (1) (b) (625 SE2d 465) (2005).
    8
    when he causes the death of another human being under circumstances
    which would otherwise be murder and if he acts solely as the result of
    a sudden, violent, and irresistible passion resulting from serious
    provocation sufficient to excite such passion in a reasonable person.
    OCGA § 16-5-2 (a).
    “If, upon a sudden quarrel, the parties agree to a fight, and one of them is
    killed, such killing is voluntary manslaughter, no matter who strikes the first blow.”
    (Citation and punctuation omitted.) White v. State, 
    179 Ga. App. 276
    , 277 (1) (346
    SE2d 91) (1986). “A mutual intention to fight need not be proved directly, but may
    be inferred by the jury from the conduct of the parties.” (Citations and punctuation
    omitted.) Harris v. State, 
    183 Ga. App. 219
    , 220 (1) (358 SE2d 634) (1987). If there
    is any evidence that both parties were armed and “intended to resolve their
    differences by fighting each other with deadly weapons,” a defendant can be
    convicted of voluntary manslaughter in lieu of murder. Sanders v. State, 
    283 Ga. 372
    ,
    375 (2) (c) (659 SE2d 376) (2008).
    Furthermore, “[a] person who does not directly commit a crime may be
    convicted upon proof that a crime was committed and that person was a party to it.”
    (Citation and punctuation omitted.) Copeny v. State, 
    316 Ga. App. 347
    , 349 (1) (a)
    (729 SE2d 487) (2012). See OCGA § 16-2-20 (a).
    9
    A person who intentionally aids or abets in the commission of a crime
    or intentionally advises, encourages, hires, counsels or procures another
    to commit the crime may be convicted of the crime as a party to the
    crime. Mere presence at the scene is not sufficient to convict one of
    being a party to a crime, but criminal intent may be inferred from
    conduct before, during, and after the commission of a crime.
    (Footnote omitted.) Dunn v. State, 
    248 Ga. App. 223
    , 224-225 (1) (546 SE2d 27)
    (2001). See OCGA § 16-2-20 (b). So long as “the defendant had knowledge of the
    intended crime and shared in the criminal intent of the principal actor, he is an aider
    and abetter.” (Citation, punctuation, and emphasis omitted.) Copeny, 316 Ga. App.
    at 349 (1) (a). Whether a defendant was a party to the charged crime is normally a
    question for the jury. Dunn, 248 Ga. App. at 225 (1).
    “Applying these principles, we have held that a getaway driver who waits for
    his co-defendant to return to the car can be found guilty as a party to the crimes
    committed by the co-defendant.” Wise v. State, 
    325 Ga. App. 377
    , 380 (1) (752 SE2d
    628) (2013). See also Jordan v. State, 
    281 Ga. App. 419
    , 422 (1) (636 SE2d 151)
    (2006) (defendant who waited at scene in a second car and then assisted in escape
    could be found guilty as a party to the crime). Moreover, a defendant who
    accompanies a co-defendant to the crime scene and serves as a lookout also can be
    10
    convicted as a party to the crime, see Campbell v. State, 
    314 Ga. App. 299
    , 304 (724
    SE2d 24) (2012), and evidence that a defendant provided a weapon, ammunition, or
    other supplies to another party for use in mutual combat can be found guilty as a party
    to the crime of voluntary manslaughter. See Mitchell v. State, 
    225 Ga. App. 26
    , 27-28
    (1) (482 SE2d 419) (1997).
    Construed in the light most favorable to the verdict with all inferences drawn
    in favor of the prosecution, the combined circumstantial evidence presented by the
    State in this case reflected that Platt supplied his Infiniti stocked with ammunition for
    use at the Sandy Springs apartment; accompanied Clark, Dixon, and the unknown
    male to the apartment in his silver Grand Prix; remained parked outside while
    maintaining cell phone contact with Clark and Dixon after they and the unknown
    male went inside the apartment; and served as the getaway driver who facilitated the
    escape of the wounded Dixon and the unknown male. Based on this circumstantial
    evidence and the case law previously discussed, we conclude that a rational jury was
    authorized to find Platt guilty beyond a reasonable doubt as a party to the crime of
    voluntary manslaughter. Jackson, 
    443 U. S. at 319
     (III) (B). The jury reasonably
    could have inferred that Platt, Clark, Dixon, and the unknown male “were engaged
    in a common enterprise at the time of the shooting” and that they “shared a criminal
    11
    intent with respect to the shooting.” Powell v. State, 
    291 Ga. 743
    , 745 (1) (733 SE2d
    294) (2012). See Wright v. State, 
    296 Ga. 276
    , 277, 284 (3) (766 SE2d 439) (2014)
    (evidence was sufficient to show that defendant was party to shooting committed by
    co-defendant, where defendant drove his co-defendants to the scene, communicated
    with his co-defendants at the scene after they got out of the car, and served as the
    getaway driver after the shooting); Jordan v. State, 
    281 Ga. App. 419
    , 422 (1) (636
    SE2d 151) (2006) (evidence was sufficient to support defendant’s conviction as party
    to the crime, where defendant waited at the scene and then assisted his co-defendants
    in their attempted escape).4
    While Platt argues that the evidence did not exclude every reasonable
    hypothesis except his guilt, the circumstantial evidence “need not exclude every
    conceivable inference or hypothesis – only those that are reasonable.” (Emphasis in
    4
    It is true that “driving a criminal perpetrator away from a crime scene with
    knowledge that he has committed the crime does not, in and of itself, render one
    guilty as a party to the crime (although it could result in criminal liability as an
    accomplice after the fact at common law).” Ratana v. State, 
    297 Ga. App. 747
    , 750
    (678 SE2d 193) (2009) (evidence insufficient to support defendant’s conviction as
    party to the shooting of the victim by co-defendant, where defendant drove the co-
    defendant from the scene after the shooting, but there was no evidence that the
    defendant had driven the co-defendant to the scene or “did anything on the scene to
    advise or encourage [the co-defendant] to commit the crimes”). But here, as discussed
    above, the evidence, construed in favor of the verdict, showed that Platt did more than
    simply drive the others from the scene after the shooting.
    12
    original.) Merritt v. State, 
    285 Ga. 778
    , 779 (1) (683 SE2d 855) (2009). The totality
    of the evidence summarized above, although circumstantial, was sufficient to allow
    the jury to find that every other reasonable hypothesis except the guilt of Platt had
    been excluded and to convict him of voluntary manslaughter.5
    (b) Platt further contends that even if he could be found guilty for the voluntary
    manslaughter of Palacios-Vasquez, he could not be found guilty of the voluntary
    manslaughter of Clark. Platt emphasizes that Clark was shot and killed by
    Palacios-Vasquez or one of his associates, rather than by someone with whom Platt
    was aligned in the gunfight. Again, we find no basis for reversal.
    Where there is evidence that the parties mutually agreed to engage in a gunfight
    to settle a dispute, a rational jury can find that all of the “participants in the gun battle
    shared a common criminal intent – to assault each other with guns.” Emmanuel v.
    State, 
    300 Ga. App. 378
    , 380 (1) (685 SE2d 361) (2009), quoting Taylor v. State, 
    296 Ga. App. 212
    , 213 (1) (a) (674 SE2d 81) (2009). See also Coe v. State, 
    293 Ga. 233
    ,
    5
    For the same reasons, we conclude that the evidence was sufficient to support
    Platt’s convictions for possession of a firearm during the commission of a felony.
    “Where a party has possessed a firearm during the commission of a felony, an
    accomplice who is concerned in the commission of the crime under OCGA § 16-2-20
    is likewise guilty of both offenses.” (Citations and punctuation omitted.) Anderson
    v. State, 
    237 Ga. App. 595
    , 596 (2) (516 SE2d 315) (1999).
    13
    235 (1) (748 SE2d 824) (2013); Coker v. State, 
    209 Ga. App. 142
    , 143 (433 SE2d
    637) (1993). Given this shared criminal intent, a defendant who was a party to the gun
    battle can be held criminally liable for a shooting injury or death caused by the battle,
    even if the shot was fired by an opponent of the defendant. See 
    id.
     See also State v.
    Spates, 
    779 N.W.2d 770
    , 780-781 (Iowa 2010) (“The primary distinction between
    garden-variety aiding and abetting and mutual-combat aiding and abetting is that the
    existence of mutual combat provides a factual basis for holding a defendant
    combatant vicariously liable for the murderous conduct of any other combatant, even
    an opponent of the defendant.”).
    A shooting injury or death “caused” by the gun battle means one that was
    proximately caused by the battle. See Walker v. State, 
    251 Ga. App. 479
    , 481 (1) (553
    SE2d 634) (2001) (applying proximate cause in context of voluntary manslaughter
    conviction). See also State v. Jackson, 
    287 Ga. 646
    , 648 (2) (697 SE2d 757) (2010)
    (noting that “proximate cause is the standard for homicide cases in general”).
    “Proximate causation imposes liability for the reasonably foreseeable results of
    criminal conduct if there is no sufficient, independent, and unforeseen intervening
    cause.” (Citation and punctuation omitted.) State v. Ogilvie, 
    292 Ga. 6
    , 11 (2) (d) (734
    SE2d 50) (2012).
    14
    As already explained, from the circumstances proven in this case, a rational
    jury could have inferred that Platt aided and abetted the gunfight that occurred in the
    apartment. Platt thus could be held criminally liable for his friend Clark’s death, even
    if the shot was fired by a rival gang member, so long as the death was proximately
    caused by the gunfight. See Coe, 
    293 Ga. at 235
     (1); Emmanuel, 300 Ga. App. at 380
    (1); Taylor, 296 Ga. App. at 213 (1) (a); Coker, 209 Ga. App. at 143. And a rational
    jury was entitled to find that Clark’s death was a reasonably foreseeable result of the
    gunfight, and thus that proximate causation had been shown. The evidence therefore
    was sufficient to support Platt’s conviction as a party to the voluntary manslaughter
    of Clark.
    2. Platt also contends that the trial court erred by failing to strike a prospective
    juror for cause. We do not agree.
    Under Georgia law, there is a presumption that potential jurors are
    impartial, and the burden of proving partiality relies with the party
    seeking to have the juror disqualified. Furthermore, whether to strike a
    juror for cause lies within the sound discretion of the trial court, and a
    trial court is not obligated to strike a juror for cause in every instance in
    which the potential juror expresses doubts about his or her impartiality
    or reservations about his or her ability to set aside personal experiences.
    Indeed, the trial judge is uniquely positioned to observe a potential
    juror’s demeanor and thereby to evaluate his or her capacity to render an
    15
    impartial verdict. But the trial court must excuse a potential juror for
    cause based on the juror’s partiality, if an opinion held by the potential
    juror is so fixed and definite that the juror will be unable to set the
    opinion aside and decide the case based upon the evidence or the court’s
    charge upon the evidence.
    (Punctuation and footnotes omitted.) Wheeler v. State, 
    327 Ga. App. 313
    , 314-315 (1)
    (758 SE2d 840) (2014).
    Here, during voir dire, the prospective juror in question indicated that she was
    scared of guns. The juror stated that she was unsure if she could overcome her bias
    because she believed that someone would have a gun only for self-defense or “to hurt
    somebody,” and she did not know any other reason someone would have a gun. When
    asked if she would find someone guilty just because she did not like guns, the juror
    responded, “No.” The juror then was asked if she would listen to the evidence before
    finding someone guilty, and she responded:
    I would listen to the evidence. I would love to listen to the evidence, but
    my question would always be, well, why does this person need a gun.
    And so I would need to understand that there’s a good reason for having
    a gun, other than saying having to defend somebody, which means
    hurting somebody else, or I’m going to defend my business, [or] a drug
    company, by hurting somebody else. We would need to overcome that
    burden to understand why someone would have one.
    16
    Later in her exchange with counsel, the juror stated,
    I think I am capable of coming in and taking instructions of how to view
    – [the prosecutor] just went through innocent until proven guilty and
    taking the facts that are in the courtroom and making a decision of those
    facts presented beyond a reasonable doubt.
    The jury also stated that it was her “hope” that she could set her bias aside.
    Based on the juror’s responses, Platt moved to strike the prospective juror for
    cause. The State objected, arguing that the juror “was simply being candid” and could
    be fair and impartial when her comments were viewed in their totality. The trial court
    agreed with the State and denied the motion to strike. Ultimately, Platt used one of
    his peremptory strikes to exclude the prospective juror.
    A prospective juror’s statement that she “hopes” she could decide the case in
    an unbiased manner based on the trial court’s instructions and evidence does not
    require the juror to be excused. See Ellis v. State, 
    292 Ga. 276
    , 283-284 (4) (b) (736
    SE2d 412) (2013); Amador v. State, 
    310 Ga. App. 280
    , 281-282 (1) (713 SE2d 423)
    (2011). See also Johnson v. State, 
    291 Ga. 621
    , 624 (2) (732 SE2d 266) (2012)
    (“When a potential juror testifies that he or she will ‘try’ to decide the case based
    upon the court’s instructions and the evidence, excusing that prospective juror for
    cause is not mandated.”). Furthermore, “it is not an abuse of discretion to seat a juror
    17
    who questions her ability to set aside biases so long as the juror indicates she has no
    unalterable fixed prejudices.” (Punctuation and footnote omitted.) Wheeler, 327 Ga.
    App. at 316 (1).
    Based on the prospective juror’s comments, taken as a whole, the trial court
    was authorized to find that the juror’s opinion was not so fixed and definite as to
    preclude her from service on the jury. The trial court therefore did not abuse its
    discretion in denying Platt’s motion to strike the prospective juror for cause.
    Judgment affirmed. Ray and McMillian, JJ., concur.
    18
    

Document Info

Docket Number: A15A1608

Citation Numbers: 335 Ga. App. 49, 778 S.E.2d 416, 2015 WL 6458245

Judges: Barnes, Ray, McMillian

Filed Date: 11/3/2015

Precedential Status: Precedential

Modified Date: 11/8/2024