Grant v. State , 298 Ga. 835 ( 2016 )

In the Supreme Court of Georgia
Decided: April 4, 2016
S16A0195. GRANT v. THE STATE.
HINES, Presiding Justice.
Jaferell Grant appeals the denial of his motion for new trial, as amended,
and his convictions and sentences for felony murder while in the commission of
aggravated assault and possession of a firearm during the commission of the
felony of aggravated assault in connection with the fatal shooting of Stephen
Davis. Grant challenges the sufficiency of the evidence of his guilt and the
denial of his motion for a mistrial based upon allegedly improper and
prejudicial character evidence from a State’s witness. For the reasons which
follow, the challenges are without merit and we affirm.1
1
The fatal shooting occurred on September 27, 2008. On April 10, 2009, a Fulton County
grand jury returned a six-count indictment against Grant. Grant was tried before a jury June 28 - July
5, 2011, and was acquitted of malice murder but found guilty of the remaining charges. On July 14,
2011, he was sentenced to life in prison for felony murder while in the commission of aggravated
assault and a consecutive term of five years in prison for possession of a firearm during the
commission of a felony; the remaining verdicts were vacated by operation of law or merged for the
purpose of sentencing. Malcolm v. State, 263 Ga. 369, 371, 372 (4) (434 SE2d 479) (1993). A
motion for new trial was filed on July 22, 2011, amended on May 9, 2013, and denied on May 5,
2014. A notice of appeal was filed on May 8, 2014, and the case was docketed in this Court's January
2016 term. The appeal was argued orally on February 8, 2016.
The evidence construed in favor of the verdicts showed the following.
Grant’s stepbrother, Jewara “Sonny” Milliner, and John “Jaybo” Robinson lived
in the same apartment complex, and were involved in a feud stemming from an
incident between their girlfriends, respectively Dana Watkins and Latasha
Smith. On September 27, 2008, Milliner called Grant, and asked for Grant to
come over because Milliner believed that Robinson had assembled a group of
people and planned to jump him. Grant arrived at Milliner’s apartment with
three or four other men. Grant was armed with a pistol with a laser sight. One
of the men with Grant then brought eight or nine other people to the scene. As
the men arrived, they gathered around Milliner near Robinson’s porch. The men
were all armed with semi-automatic handguns with laser sights. One of the men
knocked on Robinson’s door and asked “what’s up between you and Sonny?”
But when the assembled group discovered that Robinson had his children in his
apartment and not a gathering of men, the group decided it would leave.
However, the group was angry because it could not complete its “mission,” and
it was “very hyped.” At this time, Chase “ Thirty Eight” Simpson exited his
nearby apartment, approached the group of men which included Grant, and was
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“rapping,” offending some members with his lyrics. The group began to
congregate near Simpson. Group members pulled up their shirts to reveal their
weapons, leading Simpson to retreat towards his own door; he was followed by
four or five men from the group. A group member then struck Simpson in the
face with a pistol, and the group members drew their weapons. Stephen Davis
exited Simpson’s apartment to help Simpson. As Davis was pulling Simpson
towards his apartment, the group members began firing; at least two and
possibly five pistols were fired. Davis was fatally shot twice in the back.
After the shooting, Grant got into a vehicle and left the scene. He later told
his stepmother it would be best if she did not know who the shooter was, so she
would not be involved. Grant hired an attorney for at least one of the witnesses,
and he told Watkins that if she was apprehended, “you don’t know nobody.” He
attempted to alter his appearance by cutting off his long, thick braids or “dreads”
and fled to Mobile, Alabama, where he was arrested.
1. Grant contends that the trial court erred by denying his motion for a
directed verdict of acquittal on all charges, asserting that there was insufficient
evidence to allow a rational trier of fact to find beyond a reasonable doubt all of
the essential elements of any of the crimes. He urges that this is so because the
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State did not present evidence of his motive for the shooting or any physical
evidence linking him to the scene, and because no witness identified him as the
shooter. But, the contention is unavailing.
In reviewing a trial court's denial of a motion for a directed verdict of
acquittal, this Court applies the sufficiency of the evidence test of Jackson v.
Virginia, 443 U.S. 307 (99 SCt 2781, 61 LEd2d 560) (1979). Smith v. State, 290
Ga. 428, 429 (1) (721 SE2d 892) (2012). And, any lack of evidence of motive
or physical evidence is not fatal to a finding of sufficiency. Indeed, it is not
necessary for the State to prove motive to establish the crime of felony murder.
Humphrey v. State, 281 Ga. 596, 599 (3) (642 SE2d 23) (2007). Nor was the
State required to produce any physical evidence inasmuch,
as the testimony of a single witness is generally
sufficient to establish a fact, [and t]he lack of
corroboration [with physical evidence] only goes to the
weight of the evidence and the credibility of the testifying witness, which is
solely within the purview of the jury.•
Johnson v. State, 296 Ga. 504, 505-506 (1) (769 SE2d 87) (2015) (quotation
marks and citation omitted). Eyewitnesses placed Grant at the scene and as an
armed member of the group which menaced the victim and fired at him. Every
person involved in the commission of a crime is a party to it and may be
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convicted for its commission. OCGA § 16-2-20 (a) 2; Robinson v. State, ___ Ga.
___ (Case No. S15A1912, decided Feb. 8, 2016). While a person’s mere
presence at the scene of the crime and mere approval of the criminal act are
insufficient to establish that the person was a party to the crime, and proof of a
shared criminal intent with the actual perpetrators is necessary, such shared
criminal intent may be inferred from the person’s conduct before, during, and
after the crime. Robinson v. State, supra. Again, the armed Grant went to the
apartment complex for a confrontation; he brought armed men with him, hastily
left the scene after the fatal shooting, hired legal representation for at least one
of the witnesses, warned another witness not to say anything, attempted to
disguise himself, and fled the state.
2
OCGA § 16-2-20 (a) provides:
(a) Every person concerned in the commission of a crime is a party thereto and may
be charged with and convicted of commission of the crime.
(b) A person is concerned in the commission of a crime only if he:
(1) Directly commits the crime;
(2) Intentionally causes some other person to commit the crime under such
circumstances that the other person is not guilty of any crime either in fact or
because of legal incapacity;
(3) Intentionally aids or abets in the commission of the crime; or
(4) Intentionally advises, encourages, hires, counsels, or procures another to
commit the crime.
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The evidence was sufficient to enable a rational trier of fact to find Grant
guilty beyond a reasonable doubt of the crimes of which he was convicted.
Jackson v. Virginia, supra. Accordingly, it was not error to deny Grant’s motion
for directed verdicts of acquittal.
2. Grant further contends that the trial court erred by denying his motion
for a mistrial when the lead investigator in the case on cross-examination referred
to Grant as a drug dealer known to be in possession of firearms, thereby
improperly placing his character into evidence.3 He argues that the “nature of the
error was egregious”; its prejudicial impact was exacerbated by other evidence
in the case, namely a certified copy of Grant’s prior conviction for possession of
cocaine with intent to distribute; the State failed in its responsibility to prevent
such testimony; and the trial court “could do little to correct the error once it was
3
Grant cites the exchange,
DEFENSE COUNSEL: Okay. Did Sonny ever tell you that he told Jaferell
to bring people over there and to bring people over there that
had firearms?
INVESTIGATOR: Not in those particular terms, no.
DEFENSE COUNSEL: Okay.
INVESTIGATOR: What he told me was he knew Jaferell was a drug dealer
and he had guns and so he called him over there --
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made.” However, this contention of error is likewise unavailing.
Following the cited exchange and the defense’s objection and unsuccessful
motion for a mistrial, the trial court gave the jury a curative instruction to which
the defense agreed. The instruction directed the jury to disregard the
investigator’s response.4 Also prior to giving the curative instruction, the trial
court, outside the jury’s presence, got assurance from the prosecution that the
investigator had been warned not to get into such matters.
Whether to declare a mistrial is a matter for the discretion of the trial court,
and the denial of a mistrial constitutes reversible error only if it appears that a
mistrial was required to preserve the defendant's right to a fair trial. McKibbins
v. State, 293 Ga. 843, 848 (3) (750 SE2d 314) (2013). And, curative instructions
can be an adequate remedy when a witness inadvertently testifies about a
defendant’s prior convictions or criminal acts so as to constitute improper
character evidence. Bunnell v. State, 292 Ga. 253, 257-258 (4) (735 SE2d 281)
4
The court directed,
All right, ladies and gentlemen. I am instructing
you that you are to disregard the detective's last
response to [named defense counsel’s] question.
That is not properly before you and should not be
considered.
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(2013). This is certainly so when the objected-to testimony appears to be
spontaneous on the part of the witness and not directly solicited by the State. See
Curry v. State, 291 Ga. 446, 452 (4) (239 SE2d 370) (2012).
In this case, the testimony at issue referred to Grant’s history, not to his
actions on the night in question, and it did not inform the jury of anything new
because there was evidence that Grant came to the crime scene armed, i.e., that
he “had guns,” and that he had earlier been convicted of a crime involving drug
dealing. Furthermore, there is no evidence that the testimony, which again was
a response on cross-examination by the defense, was in any manner encouraged
or elicited by the State; in fact, the evidence is quite to the contrary.
Simply, there is no showing that a mistrial was required to preserve
Grant’s right to a fair trial, and consequently, the trial court did not abuse its
discretion in refusing to grant one. McKibbins v. State, supra at 848 (3).
Judgments affirmed. All the Justices concur.
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