DocketNumber: S19A0373
Citation Numbers: 830 S.E.2d 90, 306 Ga. 277
Judges: Benham
Filed Date: 6/24/2019
Status: Precedential
Modified Date: 7/29/2022
**277Appellant Davious Letron Taylor appeals his convictions for murder and possession of a weapon during the commission of a crime arising out of the shooting death of Onterio Perez Dorsey.
**2781. Appellant contends the evidence was insufficient to convict him. We disagree. Viewed in a light most favorable to upholding the jury's verdicts, the evidence shows as follows.
The Events of June 20, 2009
Kelvin Sheats testified that, on June 20, 2009, he drove Dorsey to an apartment complex so that Dorsey could conduct a drug transaction. Sheats stayed in his vehicle, while Dorsey exited. Sheats testified that Dorsey walked behind one of the apartment buildings and came back with two other African-American men whom Sheats said he had never seen before. Sheats described the two *93men, who appeared to be in their 20s, as follows. One man was tall and slender, light-skinned, had low-cut hair, and was wearing shorts and a t-shirt. Sheats testified he looked straight at the tall man and saw his whole face during the incident. The other man was shorter and stockier, dark-skinned, had low-cut hair, and was wearing jeans and a white shirt. Sheats stated the three men used a large, green electrical box sitting between two apartment buildings to transact the deal, including setting up a scale. At some point during the transaction, Sheats heard the tall, light-skinned man tell Dorsey to "give it up." Sheats testified that Dorsey, in response to that command, pulled out the items he had inside of his pockets and placed them on the green utility box. Sheats testified the tall, light-skinned man shot Dorsey in the chest with an old revolver in spite of Dorsey's compliance with the tall, light-skinned man's command. At trial, Sheats identified appellant as the person he saw shoot Dorsey, and identified Banks as the shorter and stockier man he saw that day.
Brandon Jones, who lived in an apartment across the street from where the incident occurred and who knew appellant and Banks,
Sheats testified the perpetrators ran behind the apartment buildings after the shooting. Jones testified that he ran away as well.
The Police Investigations
There were two police investigations regarding these crimes - one that occurred in 2009 and one that occurred in 2013. Immediately after the shooting in 2009, Sheats could only describe the perpetrators' physical appearance because he did not know them. However, police received some leads by telephone. Audrina Taylor, who knew Dorsey personally through her husband
The new lead investigator testified that he reviewed the list of suspects and witnesses identified in 2009 and conducted some interviews.
The evidence as summarized above was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the crimes for which he was convicted. See Jackson v. Virginia ,
2. Appellant contends the trial court erred when it admitted extrinsic act evidence pursuant to OCGA § 24-4-404 (b) (Rule 404 (b)).
*95Since the enactment of the new Evidence Code, this Court has been called upon in a number of cases to examine the method by which lower courts are to determine the admissibility of evidence offered under Rule 404 (b) of other acts committed by the accused to prove intent. [Cits.] "A trial court's decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion." State v. Jones ,297 Ga. 156 , 159 (1),773 S.E.2d 170 (2015). For other acts evidence to be admissible, the moving party must satisfy a three-pronged test by showing: (1) that the evidence is relevant to an issue other than the defendant's character, (2) that the probative value is not substantially outweighed by [the danger of unfair] prejudice, and (3) that there is sufficient proof from which the jury could find the defendant **282committed the other act. See Booth v. State ,301 Ga. 678 , 682 (3),804 S.E.2d 104 (2017).
Manning v. State ,
The record shows that on December 30, 2015, the State filed notice that it intended to submit evidence of extrinsic acts involving appellant, including a 2011 incident involving aggravated assault and possession of a weapon. Ten days before trial commenced on April 18, 2016, the State supplemented its notice to include a 2008 incident involving drug possession. During a pre-trial hearing, the State asserted it was offering the extrinsic acts to show motive, intent, knowledge, and preparation and plan. Appellant objected on the grounds that the State's notices did not expressly state what the extrinsic acts were being proffered to show (motive, intent, etc.), that the evidence did not support any factors the State was purporting to show, and that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. At the close of the pretrial hearing, the trial court ruled that the evidence was relevant and not barred by the danger of unfair prejudice, holding it could be admitted at trial for all of the purposes asserted by the State.
As to the 2008 incident, a police officer testified that appellant was arrested at a house where illegal drugs were found. The 2011 incident occurred on July 30. Rondriecko Nash, who was the victim of that incident, testified that he was at a Clayton County hotel that day with his brother "probably ... out there selling drugs or something," when he was shot in the stomach because he was talking to a woman who had a boyfriend. Nash testified he could not recall who the shooter was, but a police officer, who investigated the shooting, testified Nash identified appellant as the shooter when presented with a photographic lineup that included appellant's photograph. Appellant pleaded guilty to the 2011 incident and received a five-year sentence (two years in jail and three years on probation). After the State completed its case-in-chief, the trial court granted appellant's motion to strike the evidence concerning the 2008 incident and instructed the jury to disregard it. Because the testimony regarding the 2008 incident was stricken and it is presumed the jury followed **283the trial court's instruction to disregard it,
The trial record shows the State spent a minimal amount of time eliciting evidence concerning the 2011 incident, presenting just two witnesses who took the stand briefly, and there is no contention that the State mentioned or relied upon the incident during its closing argument to the jury.
While Sheats failed to identify appellant as the shooter in 2009, Jones and Audrina Taylor reported to police close in time to Dorsey's shooting that a person nicknamed "Foot" was involved.
Sheats was questioned at length on direct and on cross-examination about his initial failure to identify appellant as the perpetrator in 2009. He testified, and explained to police at the time, that he was too emotional to make an identification three days after watching his friend get shot to death. He testified that by the time he looked at 18 photographs and identified appellant as the shooter in 2013, he had gained more clarity because the events had played out in his mind several times. In addition, the original lead investigator confirmed that the police did not place any bulletins describing appellant or any other suspect in the public domain that could possibly influence a later photographic lineup. There was no evidence that Sheats had been improperly influenced
*97Under the circumstances of this case, it is highly probable that the admission of the evidence concerning the 2011 incident did not contribute to the jury's verdicts.
3. Appellant alleges the trial court erred when it failed to give a charge on accomplice testimony, when it failed to charge on the statute of limitation, and when it allegedly improperly charged on the use of Rule 404 (b) evidence. Because appellant did not request charges on accomplice testimony or on the statute of limitation, and because he did not object to the charges given on the use of Rule 404 (b) evidence, he is only entitled to plain error review. See Clark v. State ,
In order to establish reversible error under the plain error standard of review for jury instructions, the instruction must not only be erroneous; the error must be obvious; the error must not have been affirmatively waived; and the **285appellant must make an affirmative showing that the instruction likely affected the outcome of the proceedings. See State v. Kelly ,290 Ga. 29 , 33 (2) (a),718 S.E.2d 232 (2011) ; see also Shaw v. State ,292 Ga. 871 , 873 (2),742 S.E.2d 707 (2013). Only if the appellant has met the burden of proof with respect to these three prongs of the plain error test, the appellate court may, in its discretion, remedy the error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings. [Cit.]
Willis v. State ,
(a) Appellant contends that Sheats was an accomplice inasmuch as he admittedly drove the victim to the crime scene in order to engage in a drug transaction and, therefore argues he was entitled to a charge on accomplice testimony. Appellant's contentions are without merit. Whether a person is a party to the crime may be determined from his actions before, during, and after the commission of a criminal act. See Williams v. State ,
(b) Although the crimes took place in 2009, appellant was not indicted until 2014. As to the crimes that did not constitute murder, the State alleged in the indictment that the statute of limitation was tolled because appellant's identity was not known until April 14, 2013. See OCGA § 17-3-2 (2). Appellant never asserted a statute of limitation defense at trial and never challenged the State's assertion that the statute of limitation had been tolled. Now on appeal, appellant challenges the validity of his conviction for possession of a weapon during the commission of a crime by asserting that the trial court committed plain error when it failed to give a charge on the statute of limitation sua sponte. We disagree.
**286"In criminal cases, the statute of limitation [ ] runs ... from the time of the criminal act to the time of indictment." Hall v. Hopper ,
As to possession of a weapon during the commission of a crime, the indictment, which was read to the jury and sent out with the jury during its deliberations, alleged in pertinent part that appellant's "identity was unknown to law enforcement until April 14, 2013." This Court has held that an exception to the statute of limitation is a "material allegation" which must be alleged in the indictment. See McLane v. State ,
(c) The trial court instructed the jury as to the use of Rule 404 (b) evidence immediately prior to the testimony of the Rule 404 (b) witnesses and instructed the jury once again after the close of evidence. Appellant contends the trial court erred when it included the following language in its charge to the jury: "The evidence may be considered only to the extent that it may show the issues that the State is required or authorized to prove in the crimes charged in this case now on trial." The language in question was and is consistent **287with Georgia's pattern jury instructions
4. Appellant contends the trial court erred when it granted the State's motion in limine to exclude self-serving statements made by appellant to police. Appellant did not object to the State's motion at the time it was granted. However, since appellant has failed to identify what statements he contends should have been admitted, this Court cannot meaningfully review this allegation of plain error. See McKoy v. State ,
5. Finally, appellant contends trial counsel rendered constitutionally ineffective assistance when she failed to object to the State's motion in limine regarding self-serving statements; when she failed to request a charge on accomplice testimony; when she failed to object to the charge given on Rule 404 (b) evidence; when she failed to demur to charges in the indictment that were barred by the statute of limitation; and when she did not request a jury charge on the statute of limitation. In order to prevail on a claim of ineffective assistance of counsel, appellant must
prove both that his counsel's performance was professionally deficient and that, but for the unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington ,466 U. S. 668 , 687, 694,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984). We need not review both elements of this test if the appellant fails to prove one of them. See Matthews v. State ,301 Ga. 286 , 288,800 S.E.2d 533 (2017).
Stripling v. State ,
(a) Generally, trial counsel will not be deemed deficient in circumstances where the objections in question would have lacked merit. In this case, appellant has failed to show that the trial court erred when it instructed the jury on the Rule 404 (b)
*99evidence, and, therefore, trial counsel was not deficient for failing to object. See Richardson v. State ,
(b) Appellant has posited two ineffective assistance claims regarding the statute of limitation concerning charges in the indictment that do not constitute murder. The only such crime for which appellant has been convicted is the possession of a weapon during the commission of a crime. Appellant contends that counsel was ineffective when she failed to file a pre-trial demurrer challenging the statute of limitation and when she failed to request a charge on the statute of limitation. We disagree.
(i) In this case, a pre-trial demurrer to the indictment on statute of limitation grounds would have been denied because the indictment was not defective on its face inasmuch as it included language that the statute of limitation had been tolled. See State v. Barker ,
(ii) Since the State alleged that the statute of limitation was tolled as to the non-murder offenses, that allegation was material for purposes of the State's burden of proof as to those crimes. See McLane v. State ,
Judgment affirmed.
All the Justices concur, except Blackwell, J., who concurs in judgment only in Divisions 3 (b) and 5 (b) (2).
The crimes occurred on June 20, 2009. On December 18, 2014, a Clayton County grand jury indicted appellant and Courtney Alexander Banks on charges of malice murder, three counts of felony murder, two counts of aggravated assault, armed robbery, possession of a firearm by a convicted felon, and possession of a weapon during the commission of a crime. The charges of possession of a firearm by a convicted felon and felony murder predicated thereon were nolle prossed. Appellant and Banks were jointly tried April 18-21 and April 25-28, 2016, before a jury. The jury acquitted appellant of armed robbery and one count of felony murder, returning verdicts of guilty on all other charges. On May 9, 2016, the trial court sentenced appellant to life in prison without parole for malice murder and five consecutive years to serve for possession of a weapon during the commission of a crime. The remaining charges were either vacated as a matter of law or merged for sentencing purposes. On May 11, 2016, appellant moved for a new trial and amended that motion on November 6, 2017, and on August 2, 2018. On August 1, 2018, the trial court held a hearing on the motion, as amended, and denied it August 3, 2018. Appellant filed a notice of appeal on August 14, 2018. The case was docketed to the term of this Court beginning in December 2018 and has been submitted for a decision to be made on the briefs.
The State also introduced cell phone records, including pictures of text messages, from Dorsey's cell phone and other evidence that linked Banks to the time and place of the shooting.
Jones testified he knew appellant and Banks through "mutual friends," as well as through a person named "Crazy," who lived at the apartment complex where the shooting took place. Jones testified he would see appellant and Banks on occasion at the apartment complex, usually on Crazy's porch.
Jones denied seeing Banks at the scene, testifying he only saw appellant and the victim.
Within 48 hours, Jones, who was a teenager living with his mother and younger siblings at the time, left the apartment community where the shooting occurred to go live with a relative so as to avoid any further involvement with the incident.
The State also called Audrina Taylor's husband, Marquez Bell, as a witness, but he testified he did not recall anything. However, the original lead investigator on the case testified that, on or about June 22, 2009, someone identifying himself as "Marq" gave him Banks' phone number. The new lead investigator, who was assigned to the case in 2013, testified that Marquez Bell confirmed he contacted police with Banks' phone number close in time to when the shooting occurred.
The original lead investigator on the case testified that the phone number Taylor provided was found as a contact in Dorsey's cell phone.
At trial, Sheats conceded he was uncertain about his identification in 2009 and there was evidence that, on June 24, 2009, he told the original lead investigator that he did not believe he could make a positive identification "this year" or possibly "ever" because he had only seen the shooter "from the side."
See note 5, supra.
The new lead investigator interviewed Sheats, Jones, Audrina Taylor, and Bell.
The police showed up at Sheats' house unannounced in 2013. Sheats testified that he had not had any contact with the police about the case between June 2009 and April 2013. Sheats also testified that he had seen the shooter's entire face at some point during the incident and that between 2009 and 2013, he had replayed the incident in his head a number of times such that he was more certain about his 2013 identification of appellant. The new lead investigator testified that Sheats explained that he was too emotional in 2009 to identify the perpetrator.
In 2013, Jones was convicted, as a first offender, of burglary in the first degree and theft by taking and was imprisoned for the same when investigators interviewed him the second time about Dorsey's killing. By the time the trial in this case commenced in 2016, Jones was on probation for these same convictions. Jones did not receive any benefit or promise of a benefit for testifying at appellant's trial.
The record also shows that, in May 2014, Jones identified appellant by photograph. By that time, the police file had been transferred to the district attorney.
The State also introduced recordings of phone calls appellant made from jail. Jones authenticated appellant's voice on the recordings. During one of those phone calls played for the jury, appellant made a comment that Jones was "telling like a motherf***er."
OCGA § 24-4-404 (b) states:
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.
See McKelvin v. State ,
See State v. Johnson ,
The closing argument was not transcribed.
See Division 3 (c), infra.
The fact that appellant went by the nickname "Foot" was never disputed.
The original lead investigator testified that neither a description of appellant nor a general description of the alleged shooter was ever released to the public as a BOLO (be on the lookout) bulletin. There was some evidence that Dorsey's family created and circulated their own flyer; however, the defense did not obtain any testimony from the family about the flyer's creation, and there was no evidence that Sheats ever saw it.
The charged crimes included malice murder, felony murder, aggravated assault, armed robbery, possession of a firearm by a convicted felon, and possession of a weapon during the commission of a crime.
See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal (4th Ed.), § 1.34.10.