S23A0881. BATES v. THE STATE. S23A1225. JORDAN v. THE STATE. S24A0055. SOUTHERN v. THE STATE.
S23A0881, S23A1225, S24A0055
Supreme Court of Georgia
December 19, 2023
317 Ga. 809
PINSON, Justice.
FINAL COPY
Tavius Bates, Octavious Jordan, and Jeremy Southern were convicted along with two
In separate appeals, all three co-defendants argue that the evidence was not sufficient to sustain their convictions. In addition, Bates contends that the trial court should have granted a mistrial when a detective testified that Jordan told police he drove “the other subjects” to the crime scenes, which Bates says violated his Confrontation Clause rights under Bruton v. United States, 391 U.S. 123 (88 SCt 1620, 20 LE2d 476) (1968). And Southern contends that the trial court erred by instructing the jury about conspiracy because there was no evidence of a conspiracy, and by allowing a jailhouse informant to testify because the informant was acting as an agent of the State and he obtained incriminating information from Bates without counsel present.
Each of these claims fails. The evidence was sufficient as a matter of constitutional due process to sustain each of these defendants’ convictions. Bates did not preserve his Bruton claim because he acquiesced to the trial court‘s curative instruction and failed to renew his motion for a mistrial after the instruction was given. It was not error for the trial court to instruct the jury about conspiracy because there was at least slight evidence of a conspiracy: the evidence showed that Southern аnd Bates confronted Hagood while the other co-defendants waited in the car, that the co-defendants left the crime scene together after the murder with Hagood‘s stolen car and cell phone, and that the co-defendants were either together or in contact with each other before, during, and after the murder. And the jailhouse informant was not an agent of the State because there was no evidence of an agreement between the informant and the State.
1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following.
On March 26, 2014, just after 12:30 p.m., Rayshon Smith was robbed at gunpoint. Smith was outside his cousins’ apartment
After the men left, Smith went into the apartment building and called the police. He gave police the number of his phone that was stolen. Later, Smith identified Southern in a photo array as the man who had been closest to him during the robbery.
About a half hour later, at around 1:00 p.m., Joseph James was at home in his apartment in Fulton County, not far from where Smith was robbed. James was looking out the window into the parking lot and noticed two cars pulling up. One of the cars, which was driven by Hagood, pulled into a parking space. The other car wedged behind it. When Hagood got out of the car, he seemed “out of place” and “slightly disoriented.” James saw Hagood and a man with dreadlocks standing next to the car that Hagood had been driving, while a third man remained in that car. Four or five men were in the other car. As James watched, Hagood appeared to check his pockets, and then appeared to say “I don‘t have anything” to the man with dreadlocks. The man with dreadlocks appeared to “check” Hagood, “like trying to figure out does he have something.” At that point, one of the men from the second car got out, holding a gun, and moved toward Hagood and the man with dreadlocks. Hagood tried to run. James heard a gunshot. The medical examiner testified at trial that Hagood was killed by a gunshot wound to the back.
James called 911 at 1:16 p.m. Later, when shown photo arrays, James identified Southern as the man with the gun and Bates as the man with dreadlocks who had been speaking to Hagood.2
Detective Scott Demeester, the lead investigator on the case, arrived at the scene at around 1:45 p.m. Demeester contacted Hagood‘s wife, who told him that Hagood normally would have a cell phone and a car, neither of which wаs found at the crime scene. Hagood‘s wife gave the detective Hagood‘s cell phone number and the tag number for his white Toyota Corolla, and Demeester put out alerts for both the phone and the car.
At the murder scene, police found a wallet and set of keys belonging to Smith, who had recently been robbed nearby. Detective Demeester contacted Smith and learned that his cell phone had been stolen in the robbery. The detective then subpoenaed the phone records associated with Smith‘s stolen phone, as well as those associated with Hagood‘s missing phone.
The records from Hagood‘s phone showed that someone sent a text message to Hagood‘s phone after the shooting, at 1:29 p.m. But that message was not received until 3:10 p.m., indicating that the phone was powered off or otherwise disconnected in the interim. When Hagood‘s phone finally received the message, it “pinged” off a cell tower in the area of an apartment complex on Kelly Lake Road in Decatur. Jordan‘s aunt lived in that complex. Jordan himself was living at a nearby hotel, and Southern lived in the area, too. A maintenance man from the Kelly Lake Road apartment complex testified that he had seen Hagood‘s white Toyota Corolla and the defendants’ silver Ford Taurus parked at that apartment complex later in the week, after the shooting. Hagood‘s car was eventually recovered in the same area.
The records from Rayshon Smith‘s cell phone showed that someone used it several hours after it was stolen to call MetroPCS customer service to unlock it. After it was unlocked, the phone was used to place and receive calls and text messages to and from people that phone had never been used to contact before it was stolen. The new contacts included Southern, his co-defendant Stephen Willis, Jordan‘s girlfriend, and a
Jordan and Bates were arrested and interviewed. In Jordan‘s interview, he admitted he was present at the armed robbery of Smith, that he took Smith‘s phone (and later sold it), and that he then drove to another location where a “white man” was robbed. Bates, in his statement, admitted he was present at both the robbery of Smith and the shooting of Hagood. Bates claimed that he was texting while the crimes were committed, but his phone records showed no text messages sent or received at that time. Portions of their statements were played for the jury at trial. Neither Jordan nor Bates mentioned any of their co-defendants in the portions of their statements that were played at trial.
In the portion of Jordan‘s interview that the jury did not hear, Jordan identified his co-defendants by name. Using that information, Detective Demeester obtained a search warrant for the cell-phone records of Jordan, Bates, Southern, and Willis, as well as Fortson‘s mother. From those records, detectives put together a timeline of the defendants’ whereabouts and phone activities on the day of the crimes, as follows.
On the morning of the crimes, Jordan, Bates, Southern, and their co-defendants were in regular contact. Jordan and Southern started out in the area of Decatur where they both lived, and their co-defendant Willis started out somewhere west of Stone Mountain. Jordan‘s and Southern‘s phones called each other at 8:53 a.m. and 9:20 a.m., and Jordan‘s and Bates‘s phones called each other at 10:19 a.m., 10:24 a.m., and 10:32 a.m. Bates‘s phone then went inactive for three hours, but Jordan and Southern continued using their phones. Shortly after 10:30 a.m., Jordan‘s and Southern‘s phones drove north on I-285 toward Stone Mountain Highway, then east on the highway toward Stone Mountain. Jordan‘s and Southern‘s phones called Willis‘s phone at 10:48 a.m. and 10:59 a.m., respectively; all three phones pinged off the same cell tower near Stone Mountain. A little later, Southern‘s рhone drove west on Stone Mountain Highway and south on I-285, heading back the way it and Jordan‘s phone had come. (Jordan‘s phone was inactive during this time.) At 12:05 p.m., Southern‘s phone called Fortson‘s mother‘s phone while Southern was approaching Fortson‘s home in southeast Atlanta.
A short time later, just after Smith was robbed, Jordan‘s phone received a call at 12:37 p.m., and Willis‘s phone made and received calls at 12:43 p.m. and 12:47 p.m., all in the area of the robbery. Southern‘s phone pinged off a cell tower in the same area at the same time. Likewise, minutes before Hagood was killed, Jordan‘s, Southern‘s, and Willis‘s phones all made calls near the murder scene.
The phones went silent for a timе after the murder. Then, at 1:47 p.m., Bates‘s and Willis‘s phones both made calls near Fortson‘s home. Jordan‘s and Southern‘s phones made and received calls a short time later in the same area. All five defendants’ phones pinged off cell towers in that area that afternoon—as did Hagood‘s stolen phone, at 3:10 p.m.
The State also introduced testimony from a jailhouse informant. The informant, Victor Seldon, was in jail with Bates, who had been arrested on an unrelated charge after Hagood was killed. While they were in jail together, Bates told Seldon about the armed robbery of Rayshon Smith. Seldon asked his family to look into the matter and was eventually put in touch with the Cobb County district attorney‘s offiсe. The district attorney‘s office arranged for Seldon to testify at the armed robbery trial. On the day Seldon was to testify, while waiting in a holding cell in the courthouse basement, he saw Bates and Southern walk by. Bates said to Southern, “[t]hat‘s that motherf**ker right there.” Southern then said to Seldon, “Hey, man, keep your motherf**king mouth closed. We know your family. We know where they live. We even know what car they drive. Keep your motherf**king mouth closed.” Southern named the specific model of car that Seldon‘s wife had recently purchased, which convinced
2. All three appellants contend that the evidence was constitutionally insufficient to sustain their convictions. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). Bates and Jordan, relying on
“We evaluate a due process challenge to the sufficiency of the evidence by viewing the evidence presented at trial in the light most favorable to the verdicts, and asking whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.” Henderson v. State, 317 Ga. 66, 72 (2) (891 SE2d 884) (2023). We do not reweigh evidence, see Williams v. State, 304 Ga. 658, 660 (1) (821 SE2d 351) (2018), and we leave to the jury “the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts.” Perkins v. State, 313 Ga. 885, 891 (2) (a) (873 SE2d 185) (2022) (citation and punctuation omitted).
A conviction may rest on circumstantial evidence alone if that evidence “exclude[s] every other reasonable hypothesis save that of the guilt of the accused.”
Here, the evidence was sufficient to authorize the jury to find Bates, Jordan, and Southern guilty of Hagood‘s murder and the related crimes. Southern was directly identified as the shooter by a witness to the murder; the same witness identified Bates as the second man who confronted Hagood. See Jackson v. State, 307 Ga. 770, 772 (838 SE2d 246) (2020) (eyewitness testimony is direct evidence of guilt).3 Jordan admitted that he drove the co-defendants to the scene of the murder, and Bates admitted he was present, too. See Thrift v. State, 310 Ga. 499, 502 (1) (852 SE2d 560) (2020) (confessions are direct evidencе of guilt). Also, Smith‘s stolen wallet and keys were found at the murder scene, suggesting that the men who shot Hagood were the same men who had earlier robbed Smith—and “from that inference flowed further evidence implicating the group.” Willis, 315 Ga. at 24 (2). Indeed, Smith identified Southern as one of the robbers, and after the murder, Jordan used Smith‘s stolen phone and later sold it. See Eckman v. State, 274 Ga. 63, 65 (1) (548 SE2d 310) (2001) (circumstantial evidence of guilt included defendant‘s use of “the fruits of the multi-county crime spree“). And later, Southern and Bates threatened Victor Seldon not to testify at their trial for the armed robbery. That evidence was sufficient as a matter of constitutional due process to support the co-defendants’ convictions.
Bates and Jordan also rаise a statutory sufficiency argument under
To begin with, the circumstantial evidence statute does not apply to Bates because there was direct evidence of his guilt: a witness identified him with Southern and Hagood at the scene of the shooting. See Garay v. State, 314 Ga. 16, 20 (2) (875 SE2d 631) (2022) (“if there is any direct evidence presented by the State, the circumstantial evidence statute does not apply to a sufficiency analysis“). So we apply the statute only to review the sufficiency of the evidence against Jordan, which arguably was all circumstantial.
Ultimately, however, it makes no difference, because the evidence was more than sufficient for the jury to reject the claim that Bates and Jordan were merely present, both as a matter of constitutional due process and under
The evidence here authorized the jury to find that Bates and Jordan were guilty of Hagood‘s murder as parties to the crime and to reject the hypothesis that they were merely present at the scene. Besides the evidence recounted above, the cell-phone data showed that the co-defendants’ phones moved together around the city before and after the crimes and stayed in communication throughout the day. The phones of Bates, Jordan, and Southern were all in contact in the morning. Jordan‘s and Southern‘s phones traveled together from the area of their homes in Decatur to near Stone Mountain. Then those two phones and Willis‘s phone returned to Decatur and contacted Fortson‘s mother‘s phone near where Fortson lived. Later, the phones of Jordan, Southern, and Willis all made or received calls near the armed robbery and near the murder. See Grier v. State, 305 Ga. 882, 884 (1) (828 SE2d 304) (2019) (cell-phone records placing defendant near crime scene contributed to evidence authorizing guilty verdict). Still later, all the co-defendants’ phones were active back in Decatur, near where several of them lived, in the same area where Hagood‘s stolen phone was used and where his stolen car was recovered. See Carter v. State, 305 Ga. 863, 867 (2) (828 SE2d 317) (2019) (circumstantial evidence of guilt included the location of the victim‘s phone after the victim‘s death).
Some of Bates‘s and Jordan‘s individual conduct also supported the inference of their guilt. Bates lied to police that he was texting when the crimes occurred, from which the jury could infer that he was trying to hide his own participation. And Jordan parked his car behind Hagood‘s car at the murder scene as though to prevent Hagood from leaving, from which the jury could infer that Jordan knew a crime was about to be committed.
Given the ample evidence that Bates and Jordan shared a criminal intent with Southern and the other co-defendants, the jury
Finally, Bates separately contends that the trial court erred by denying his motion for a directed verdict of acquittal. Because our standard for reviewing a direct-verdict motion is the same as that for reviewing the constitutional sufficiency of the evidence, see Crawford v. State, 312 Ga. 452, 454-455 (2) (863 SE2d 75) (2021), this claim likewise fails.
3. In Case No. S23A0881, Bates contends the trial court abused its discretion by denying his motion for mistrial after Detective Demeester testified about the statement Jordan gave to police. In Bates‘s view, a portion of Jordan‘s statement violated Bates‘s Confrontation Clause rights under Bruton, because it was “powerfully incriminating” of Bates.
(a) While being questioned by the State, Detective Demeester testified that Jordan had implicated “the other subjects” in his statement:
Q: [Jordan‘s counsel] asked you some questions about Mr. Jordan. Do you remember?
A: Yes.
Q: He asked you did Mr. Jordan put himself out [of] the car. Do you recall the question?
A: Yes.
Q: Okay. What role in this whole armed robbery in Cobb and murder in Fulton does Jordan put himself in?
A: That he drove the other subjects to the location in Cobb County and then removеd them from the robbery location after they robbed Mr. Smith and then was down on Fulton Industrial Boulevard with the other subjects when Mr. Hagood pulled up.
Bates‘s counsel immediately asked to make a motion outside the presence of the jury. When the jury had been excused, counsel moved for a mistrial, arguing that Demeester had mentioned “the other subjects,” and the only “other subjects” were Jordan‘s co-defendants. See Bruton, 391 U.S. at 135-137 (recognizing that “powerfully incriminating extrajudicial statements” by a non-testifying co-defendant can violate a defendant‘s right to confront witnesses against him).
The court decided that it would issue a curative instruction. Bates‘s counsel responded, “If the court is going to instruct the jury to disregard that, thеn we just need to move on from that point.” The court then instructed the jury:
You are to disregard the witness‘s answer. You are not to consider that in the evidence. And you are to disregard it completely.
So anyway, we‘ll continue in a minute. But if you are unable to follow my instruction, please raise your hand.
No juror raised their hand, the trial continued, and Bates‘s counsel did not renew the motion for a mistrial.
(b) We do not reach Bates‘s Bruton claim because it was not preserved for appeal. To ensure appellate review of the denial of a motion for mistrial, a defendant generally must preserve the issue at trial. See Jones v. State, 317 Ga. 466, 472 (2) (893 SE2d 741) (2023). To do that, the defendant first must make a motion at the earliest opportunity in the trial court. See Thomas v. State, 310 Ga. 579, 581-582 (2) (853 SE2d 111) (2020) (“If the defendant did not make a contemporaneous motion for a mistrial at the time the defendant became aware of the matter giving rise to the motion, then the defendant has waived review of this issue on appeal.“) (citation and punctuation omitted). If the trial court denies the motion, the error is preserved. See, e.g., Richardson v. State, 308 Ga. 70, 71 (2) (838 SE2d 759) (2020) (reviewing trial court‘s denial of mistrial on the merits where defendant “moved for a mistrial, which the trial court denied“). But if the trial court instead takes steps to cure the matter giving rise to the motion, like giving a curative instruction, the defendant has a choice: accept the curative instruction and move on, or object, renew the motion for
Bates did not take the steps necessary to preserve his mistrial motion for appeal. He made a contemporaneous motion: as soon as Detective Demeester testified about Jordan mentioning “the other subjects,” Bates asked for the jury to be excused and then moved for a mistrial. But when the trial court proposed issuing a curative instruction, Bates not only did not object to the instruction, but acquiesced: counsel said “If the court is going to instruct the jury to disregard that, then we just need to move on from that point.” And Bates did not renew the motion for mistrial after the trial court issued the curative instruction. Having failed to object to the curative instruction and renew the motion for mistrial, Bates did not preserve the issue for appeal. See Hartsfield, 294 Ga. at 886 (2); McCoy, 273 Ga. at 572 (8). See also Blackshear v. State, 285 Ga. 619, 621 (4) (680 SE2d 850) (2009) (declining to review Confrontation Clause issue that was not properly preserved for appeal).
4. In Case No. S24A0055, Southern contends the trial сourt erred by instructing the jury on conspiracy over his objection.5 We review de novo a properly preserved claim that a trial court gave an incorrect jury instruction. See Reese v. State, 314 Ga. 871, 879-880 (2) (880 SE2d 117) (2022).
A conspiracy instruction is authorized even if no defendant is charged with that offense, see
In light of this well-settled law on what evidence can establish a conspiracy, here there was slight—indeed, ample—evidence
5. Southern also contends that the trial court erred by admitting the testimony of the jailhouse informant, Seldon, over Southern‘s objection. In Southern‘s view, Seldon‘s testimony should have been suppressed because, when he and Bates spoke in the jail, Seldon was acting as an agent of the State and Bates did not have an attorney present, which violated Bates‘s right to counsel under the Sixth Amendment to the United States Constitution. See Massiah v. United States, 377 U.S. 201, 206 (84 SCt 1199, 12 LE2d 246) (1964).6 In reviewing a trial court‘s denial of a motion to suppress on Sixth Amendment grounds, we accept the trial court‘s factual findings unless they are clearly erroneous, and we review de novo the trial court‘s application of the law to the facts. See Taylor v. State, 312 Ga. 1, 9 (3) (860 SE2d 470) (2021).
Southern‘s claim fails. Under Massiah, a defendant‘s Sixth Amendment right to the assistance of сounsel “is violated by the admission of incriminating statements which a government agent deliberately elicits after indictment and in the absence of counsel.” Higuera-Hernandez v. State, 289 Ga. 553, 554 (2) (714 SE2d 236) (2011). But an inmate who merely “acts upon the expectation
Judgments affirmed. All the Justices concur.
Decided December 19, 2023.
Murder. Fulton Superior Court. Before Judge Krause.
Charles H. Frier, for appellant (case no. S23A0881).
Melissa Akins, for appellant (case no. S23A1225).
Sharp Georgia Law Firm, Randall P. Sharp, for appellant (case no. S24A0055).
Fani T. Willis, District Attorney, Kevin C. Armstrong, Mathew E. Plott, Assistant District Attorneys; Christopher M. Carr, Attorney General, Beth A. Burton, Deputy Attorney General, Paula K. Smith, Clint C. Malcolm, Meghan H. Hill, Senior Assistant Attorneys General, M. Catherine Norman, Eric C. Peters, Assistant Attorneys General, for appellee.
Notes
A person commits conspiracy to commit a crime when that person together with one or more other persons conspires to commit any crime in any one or more of such person — and any one or more of such person does any overt act to bring about the object of the conspiracy.
A conspiracy is an agreement between two or more persons to do an unlawful act. And the existence of a conspiracy may be established by proof of acts and conduct as well as proof of an express agreement.
When persons associate themselves in an unlawful enterprise, any act done by any party to the conspiracy to further the unlawful enterprise is considered to be the act of all conspirators. However, each person is responsible for the acts of others only insofar as such acts are naturally and necessarily done to further the conspiracy. Whether or not a conspiracy existed in this case is a matter for you to determine.