FITTS v. THE STATE (Two Cases)
312 Ga. 134
Ga.2021Background
- On March 4, 2015, two people (Tenecia Posley and Barry Johnson) were shot to death during a burglary of Damian Calvin’s home. Large amounts of cash and drugs were stolen; the house was ransacked.
- Donovan Fitts (boyfriend) and Jermanique Franklin (girlfriend) lived with Fitts’s godmother, Melba Ansley; Deaundre Ross was an associate who often visited. Tire tracks and cell-site data linked Ansley’s truck and Fitts to the scene; shell casings from the murder matched casings found later at Ansley’s house and at a separate March 31, 2015 shooting involving Ross.
- Fitts was recorded in jail admitting he “had a big part in it” though denying he shot the victims. Franklin met Calvin at a hotel during the time of the murders and had telephonic contact with Fitts before and after; she claimed ignorance of the crimes.
- Ross was later acquitted at trial; Fitts and Franklin were tried jointly. The jury convicted Fitts of multiple counts including murder; convicted Franklin of two counts of felony murder, burglary, and armed robbery (but acquitted her on other counts).
- Appeals: Fitts challenged admission of evidence of the March 31 shooting and alleged ineffective assistance for not objecting to hearsay; Franklin challenged sufficiency of the evidence as a party, sought a change to the Jackson sufficiency review, and raised an ineffective-assistance claim and merger/sentencing error.
- Court outcome: affirmed Fitts’s convictions (harmless error re: March 31 shooting; no ineffective assistance), affirmed Franklin’s felony murder convictions but vacated her burglary and armed robbery convictions on merger grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of later March 31 shooting (intrinsic / OCGA §24-4-404(b)) (Fitts) | Fitts: trial court erred in admitting subsequent-shooting evidence as intrinsic/other-acts and in the limiting instruction. | State: evidence admissible to show common instrumentality, connection among actors, and participation; limiting instruction given. | Even if erroneous, admission was harmless: strong independent evidence (Fitts’s jail call, tire/cell data) makes it highly probable the evidence did not contribute to verdict. |
| Ineffective assistance — failure to object to hearsay/Confrontation (Fitts) | Fitts: counsel should have objected to Ross’s father’s statement that Ross “gave it back to Fitts” and moved for mistrial (Bruton/Confrontation). | State: statement to a family member shortly after shooting was non-testimonial; trial court excluded the answer and gave curative instruction; counsel’s tactical agreement was reasonable. | No deficient performance or prejudice: statement was non-testimonial (no Bruton violation), jurors were instructed to disregard, and counsel’s choice was strategic and reasonable. |
| Sufficiency as party to the crime; standard of review (Franklin) | Franklin: evidence insufficient — she was not present at the killings; contacts (calls, repairs, meeting with Calvin) are consistent with innocent explanations; Jackson/Fourteenth Amendment requires stricter review. | State: circumstantial and direct facts (phone calls, rescheduling with Calvin, truck/tire link, false name to GBI, continuing contact with Calvin) allowed a jury to infer common criminal intent and exclude other reasonable hypotheses. | Guilty verdicts for felony murder sustained: evidence, viewed favorably to the jury, was sufficient to find Franklin a party to the crimes; Jackson standard retained and applied. |
| Ineffective assistance — counsel’s opening calling client “duplicitous,” and merger/sentencing (Franklin) | Franklin: counsel’s comment destroyed credibility; sentencing included convictions that should merge with felony murder. | State: counsel’s comment was a reasonable strategic choice; merger required because jury did not specify predicate felony for murder. | No ineffective assistance: comment was within strategic bounds. Merger error found: vacated convictions for burglary and armed robbery (they should have merged into felony murder). |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (constitutional sufficiency standard for convictions)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard requiring deficient performance and prejudice)
- Taylor v. State, 306 Ga. 277 (harmless-error test; de novo weighing when assessing nonconstitutional harmless error)
- Lofton v. State, 309 Ga. 349 (harmless error where strong independent evidence supported guilt)
- Reed v. State, 307 Ga. 527 (test for whether out-of-court statements are testimonial)
- Billings v. State, 293 Ga. 99 (testimonial statement definition; statements to police/for prosecution)
- Allen v. State, 300 Ga. 500 (co-defendant statements to third parties before arrest are non-testimonial)
- Battle v. State, 301 Ga. 694 (explaining Bruton rule in joint trials)
- Coates v. State, 310 Ga. 94 (party liability: common criminal intent may be inferred from presence, companionship, conduct)
- Frazier v. State, 308 Ga. 450 (circumstantial-evidence review and jury role in weighing conflicts)
- Thompson v. State, 263 Ga. 23 (ambiguity in jury verdicts construed in defendant’s favor)
- Robertson v. State, 268 Ga. 772 (merger of lesser offenses into felony murder when predicate felony unclear)