BLOCKER v. THE STATE
S23A0032
In the Supreme Court of Georgia
Decided: June 21, 2023
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
Appellant Phillip Blocker appeals his convictions for malice murder, participation in criminal street gang activity, and related offenses in connection with the shooting death of Eric Leon Smith.1
The trial evidence showed the following. In April 2010, Appellant had a close, sibling-like relationship with Chanel Burse (“Chanel“), and they called each other “play brother” and “play sister.” Chanel lived with Qwame Najee and Najee‘s girlfriend at an apartment in East Point, Georgia. But on the day of the shooting, Chanel was with her girlfriend, D‘Jhonia Selph, and another friend, Jamainayh Jackson, at Selph‘s apartment in Atlanta, Georgia. That afternoon, Christian Pegues (“Chris“), who was Jackson‘s boyfriend and one of Chanel‘s “play brother[s],” came to Selph‘s apartment with Smith, the victim of the shooting in this case. Smith brought a backpack with him that contained “weed,” and Chanel, Selph, and Smith smoked a “blunt” together. Chris and Smith left the apartment about 45 minutes later. After they left, Jackson discovered that some money was missing from the apartment and accused Chris of taking it. Jackson called Chris and “cuss[ed] him out.” Although Chris told Jackson he would give the money back, he did not say when, and Jackson wanted to “just go[] to see him to
Meanwhile, Appellant was at Najee‘s apartment, which was up the hill from a bus stop at the intersection of Lakemont Drive and Washington Road, where the shooting ultimately occurred. While at Najee‘s apartment, Appellant learned about the theft from Chanel and approached Najee to explain that Chanel and Jackson had a problem because Chris had stolen money from them. Appellant told Najee that Appellant was going to confront Chris and get the money back.
Around 2:00 or 3:00 in the afternoon, Appellant called La‘Dawn James, a woman he had recently started dating, and asked James if she had seen Chris or Smith. According to James, Appellant said he was asking because, “apparently, they stole $500 in rent money from Chanel and he was going to get it back.” Appellant sounded “agitated,” and James told him that she had not seen the men.
Later in the day, James went to Najee‘s apartment. When she arrived, Appellant, Najee, Najee‘s girlfriend, and Appellant‘s friend, Ralph Gist, were present. According to James, Appellant was
That evening, Gist drove Appellant and Najee from Najee‘s apartment to a nearby convenience store, which was a short distance from the bus stop where the shooting later occurred. During the drive, Najee saw Gist hand Appellant a .380-caliber handgun. Appellant “tried to cock . . . the gun back multiple times” and then asked Gist how to remove the safety. Gist “pointed to where the safety was and told him to click the safety down.”
Meanwhile, Chanel drove Selph‘s blue GMC Envoy to the
Chanel drove the GMC Envoy onto the curb in front of the bus stop around 8:45 in the evening. Chris approached the window of the vehicle and spoke to Chanel, who was upset. Meanwhile, Appellant exited the vehicle and approached Smith, who was sitting on a retaining wall next to the bus stop. Witnesses at the bus stop testified that a man matching Appellant‘s description started arguing with Smith, saying, “Hey, what‘s up, bro,” before telling Smith that “he wanted his money.” The witnesses heard another
Chanel drove Appellant, Selph, and Jackson back to Selph‘s apartment, where they stayed for the night. At the apartment, Chanel took the gun to the bathroom, where she cleaned it, removed a bullet, and hid the bullet “in between the carpet and the wall.” Sometime after the shooting, Najee called Chanel, who told him “that a wannabe Blood was shot.”
Gist and Najee returned to Najee‘s apartment shortly after leaving the convenience store and were not present for the shooting. According to James, who was still at the apartment when the men returned, the men were “bugging” and “kept rubbing their head[s] and kept going like, whew,” as they talked about Appellant. A few
Officers who responded to the scene of the shooting found that Smith had been shot in the face and was bleeding, but that he was still alive. EMS transported Smith to the hospital, where he died the next day. A medical examiner testified that Smith‘s cause of death was the gunshot wound to the head and that gunshot residue on Smith‘s skin indicated that the muzzle of the gun was close when it was discharged.
At the scene of the crime, officers also found a shell casing for a .380-caliber round, a live .380-caliber round, and Smith‘s
A witness to the shooting called 911 and gave the police a partial license-plate number for the shooter‘s vehicle, which was a match for a blue GMC Envoy registered to Selph. When officers went to the registered address, they discovered that the vehicle was parked in an adjacent parking lot, “[l]ike they were trying to hide it.” Prior to the shooting, Selph had moved from the registered address to another apartment in the same complex, leaving her old apartment vacant. Officers briefly encountered Appellant, Selph, Chanel, and Jackson at Selph‘s new apartment, while inquiring about the now-vacant-apartment‘s occupant. Selph lied to the
During interviews with detectives, Chanel stated that Appellant “had killed someone and they were with him at the time,” and Selph described the goal of confronting Chris and Smith, saying that “Chanel wanted to obtain weed,” Jackson “wanted the money,” and Appellant “wanted to obtain one of the bricks,” which the detectives understood as a reference to “a kilo of cocaine.” Following the interviews, officers searched Gist‘s apartment, finding a live .380-caliber round in a drawer. They also searched Selph‘s apartment, finding a live .380-caliber round under the floorboard in the bathroom. Appellant was later arrested at a friend‘s residence in College Park, Georgia.
Appellant waived his Miranda2 rights and agreed to speak to
In the second interview, Appellant clarified that Chanel was a member of the Bloods gang and a drug dealer who “work[ed] for somebody” moving “weight,” not just “little stuff.” He further explained that the shooting was the result of an internal dispute between members of the Bloods, saying:
Chan is a Blood. The dude that died was a Blood. She told me that she just wanted a gun so she could . . . end her problems. She called me, she said . . . her brother [Chris] and the dude just robbed her. She said, is there any way I could get her a gun? I said, yes. She said, because I put them on [the corner where the bus stop was located to sell drugs] and now they‘re f**king up my
money and stealing from me. . . . The dude that died, he had drugs on him, and Chris, that‘s what he do[es], he sells drugs.
Appellant denied having any gang affiliation, saying, “I don‘t have nothing to do with no gang.” He claimed that he had “got[ten] dragged into this” situation, that he “was just trying to” help Chanel with “her problem, her business,” and that he feared Chanel and her associates “because they . . . know where my family live[s].”
Eventually, Appellant admitted that he had shot Smith and that “[t]he only reason why [he] did it is because [Chanel] said that she was going to pay [him] and that, if [he] didn‘t do it, . . . [he] was going to die.” According to Appellant, Smith was carrying “two bricks, . . . about two pounds of weed, and a lot of money” at the time of the shooting, and Chanel said that if he shot Smith, she would pay him “two stacks,” which he understood to mean two thousand dollars. Appellant also said that Chanel threatened that, if he “miss[ed]” or “f**k[ed] this up,” she would “put this on Bloods that everything is over with because she kn[e]w where [Appellant was] staying.” Appellant told the officers that,
Appellant said that he “d[id not] know who [Chanel] work for, but she work for somebody,” and that he feared he would die if he did not shoot Smith.
Appellant then wrote a letter to Smith‘s family, which was read to the jury and admitted into evidence. Among other things, the letter stated that Appellant was “really and truly sorry for shooting [their] son,” that he “was made by drug dealers to do what [he] had done,” and that “Chan” told him that, “if [he] did not help her get her money and drugs back” by shooting Smith, “the same would happen to [him] and [his] family.”
In addition to hearing Appellant‘s recorded police interviews, in which Appellant denied that he was a gang member but said that Chanel and the victim were Bloods, the jury heard additional evidence about possible gang affiliations. Najee testified that Appellant “said he was a Crip” and that he had seen Appellant
As to Chanel‘s gang affiliation, Selph testified that Chanel “claimed to be in a Blood gang” and “wore a red bandana.” Najee also testified that Chanel “wore a lot of red,” carried a red flag or bandana in her right pocket to signify her affiliation with the Bloods, and had relationships with other people who were members of the Bloods, although he believed that Chanel‘s association with the gang was “[b]asically” a “wanna[be], watered-down version.”3 In addition, through Detective Shawn Buchanan, a detective assigned to the case, defense counsel introduced photos discovered on Appellant‘s phone, which showed Chanel holding up possible gang signs and holding a handgun. Defense counsel also elicited testimony from
2.
Appellant contends that the trial evidence was constitutionally insufficient to support his conviction for violating the Georgia Street Gang Terrorism and Prevention Act (the “Gang Act“). See
“When evaluating a challenge to the sufficiency of the evidence as a matter of constitutional due process, we view the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt for the crimes for which he was convicted.” Drennon v. State, 314 Ga. 854, 861 (3) (880 SE2d 139) (2022). In making that determination, “we put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the
To establish a violation of the Gang Act, the State must prove four elements:
- the existence of a “criminal street gang,” defined in
OCGA § 16-15-3 (3) as “any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity“; (2) the defendant‘s association with the gang; (3) that the defendant committed any of several enumerated criminal offenses, including those “involving violence, possession of a weapon, or use of a weapon“; and (4) that the crime was intended to further the interests of the gang.
Dunn v. State, 312 Ga. 471, 474 (1) (863 SE2d 159) (2021) (citation omitted). Appellant contends that the State failed to prove the first, second, and fourth elements of the Gang Act charge, arguing that “there was no credible testimony at all th[at] any [person] was in a criminal street gang; that the[] gangs were involved in criminal
As to the first element of a Gang Act charge, the trial evidence authorized a jury finding that the “Bloods” was a gang of three or more people who engaged in illegal drug trafficking. See Dunn, 312 Ga. at 474 (1). Specifically, the jury could have found the existence of a gang called the “Bloods” based on: Selph‘s and Najee‘s testimony, and Appellant‘s statements to investigators, that Chanel was a member of the “Bloods” gang; Selph‘s and Najee‘s testimony that Chanel signaled her affiliation with the gang by wearing a red bandana; and Detective Buchanan‘s testimony that officers found “a red flag or scarf which is commonly used by gang members” with Chanel‘s belongings at Selph‘s apartment. See
The trial evidence also supported the jury‘s findings as to the second and fourth elements of the Gang Act charge — that Appellant was associated with a gang and that he committed the underlying crimes to further the gang‘s interests. See Dunn, 312 Ga. at 474 (1). A gang association can be established by proof that the defendant was “employed by” a gang or was otherwise “associated with” it.
Here, although there was conflicting evidence about whether Appellant was in fact a gang member and, if so, which gang he belonged to, the trial evidence authorized a jury finding that Appellant was associated with the Bloods gang and that he committed murder to further the gang‘s interests. Specifically, the jury was authorized to find that Appellant was “employed by” the Bloods gang to commit a murder for the gang, as Appellant told officers that Chanel offered to pay him a substantial sum of money to help her resolve an internal gang dispute by killing Smith, and that he had agreed to her terms.
Appellant challenges the credibility of this evidence and points to conflicting evidence in the record, but we cannot make credibility determinations or weigh the evidence when reviewing trial evidence for sufficiency. See Davis, 312 Ga. at 872-873 (1). Because there was at least “some competent evidence” supporting the elements of the Gang Act charge that Appellant challenges on appeal, id. at 873
(1) (citation and punctuation omitted), Appellant has failed to show that “no rational trier of fact could have found [him] guilty beyond a reasonable doubt,” Charles, 315 Ga. at 654 (2) (citation and punctuation omitted). Accordingly, this claim fails.
3. Appellant argues that the trial court abused its discretion in admitting as an excited utterance hearsay testimony introduced through James. At trial, James testified that Najee and Gist left Najee‘s apartment with Appellant and returned without Appellant no more than “ten minutes” later. James further testified that “five to ten minutes” after Najee and Gist returned to the apartment, a man “banged on the door . . . real fast” and Najee let him in. When the man entered the residence, James observed that “[h]e had a bag in his hand” and “looked like he had just c[o]me from the store.” She also testified that “his eyes were wide” and he was “breathing a little heavy.” When the State asked James what the man said, defense counsel objected on hearsay grounds. But the court overruled the objection, ruling that the man‘s statements were admissible under the excited-utterance exception to the hearsay rule. James then
The excited-utterance exception provides that “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not “excluded by the hearsay rule.”
Here, the trial court did not abuse its discretion in admitting James‘s hearsay testimony as an excited utterance. According to the timeline of events provided by James, the declarant could not have
4. Appellant also raises four claims of ineffective assistance of counsel. “In reviewing a ruling on a claim of ineffective assistance of counsel, we defer to the trial court‘s findings of fact unless they are clearly erroneous, but we apply the law to the facts de novo.” Hill v. State, 310 Ga. 180, 187 (3) (b) (850 SE2d 110) (2020) (citation and punctuation omitted). To prevail on an ineffective-assistance-of-counsel claim, a defendant must “prove both deficient performance by counsel and resulting prejudice.” Evans v. State, 315 Ga. 607, 611 (2) (b) (884 SE2d 334) (2023) (citing Strickland v. Washington, 466 U.S. 668, 687 (2) (b) (104 SCt 2052, 80 LE2d 674) (1984)). “To satisfy the deficiency prong, a defendant must demonstrate that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Taylor v. State, 315 Ga. 630, 647 (5) (b) (884 SE2d 346) (2023) (citation and punctuation omitted).
(a) Appellant argues that his trial counsel performed
I submit to you that . . . if you believe the defendant‘s story that Chanel is a Blood, that at some point you believe his story about this drug ring that was going on, this whole dispute was about drugs and that Chanel put [Smith] and Chris on to sell drugs there on the corner, that this dispute was about bricks of cocaine and weed, and that ultimately he confessed that they had been stealing—not only stolen money at the house but they had been messing up her drug money and as a result she wanted to enlist his help and pay him to kill somebody, that he was going to receive two stacks, and his phone, arrested has pictures of Chanel with bandanas, by the defendant‘s own admission to the fact that he is dealing with a Blood, the fact that he agrees to do what this Blood has asked him to do, his own admission is that he has associated with a criminal street gang during commission of this offense. And I submit to you that he is guilty of the criminal street gang act and that‘s why we‘ve charged him.
At the motion-for-new-trial hearing, trial counsel testified that
The trial court did not err in denying Appellant‘s motion for a new trial on this ground, as Appellant failed to show that the prosecutor‘s Gang Act arguments lacked an evidentiary basis and therefore did not establish that trial counsel‘s failure to object was objectively unreasonable. See Arnold v. State, 309 Ga. 573, 577 (2) (a) (847 SE2d 358) (2020) (holding that counsel did not perform deficiently by failing to object to a portion of closing arguments for which “there was an evidentiary basis“). First, contrary to Appellant‘s argument, it was not “highly improper” for the prosecutor to argue that Appellant was guilty of the Gang Act charge, as we ruled in Division 2 above that the trial evidence was
Because Appellant has not shown that the prosecution‘s closing argument was objectionable, and because “trial counsel‘s failure to make a meritless objection to the State‘s closing argument is not evidence of ineffective assistance,” Appellant has failed to establish deficient performance on this ground. Arnold, 309 Ga. at 577 (2) (a) (citation and punctuation omitted).
(b) Appellant contends that trial counsel was ineffective for introducing into evidence photographs from Appellant‘s cell phone showing Chanel “throwing” possible gang signs and holding a handgun. At the motion-for-new-trial hearing, trial counsel testified that the gang evidence and Appellant‘s admission to police officers that he had shot the victim constrained his ability to develop a “plausible” defense. Trial counsel said that, as a result, he decided to “run with” the gang evidence and argue that Appellant‘s actions were coerced by Chanel, who had gang connections. He further said that the “goal” of introducing photographs of Chanel was “to make it clear that Chanel Burse was a gang member.” Trial counsel
Appellant contends that the trial court erred in denying this ineffective-assistance-of-counsel claim, arguing that trial counsel‘s decision to introduce the photographs of Chanel was an unreasonable trial strategy because the photos “only contributed to the State‘s [Gang Act] case” and failed to corroborate a coercion defense. We disagree.
Appellant has not shown that trial counsel‘s trial strategy was “so patently unreasonable that no competent attorney would have followed such a course.” Bates, 313 Ga. at 62 (2) (citation and punctuation omitted). As we have previously noted, “whether trial counsel‘s actions are reasonable may be determined or substantially influenced by a defendant‘s own statements.” Lambert v. State, 287 Ga. 774, 776 (2) (700 SE2d 354) (2010). Here, Appellant‘s
(c) Appellant argues that trial counsel performed deficiently
Appellant has not shown that trial counsel‘s failure to object to the admission of the surveillance video was “objectively unreasonable.” Taylor, 315 Ga. at 647 (5) (b) (citation and punctuation omitted). Appellant contends that trial counsel could have excluded the video if he had objected, but that argument does not address why “no competent attorney” would have chosen not to object. Bates, 313 Ga. at 62 (2) (citation and punctuation omitted).
(d) Appellant argues that trial counsel was ineffective for failing to request a jury charge stating that “[t]he defendant‘s out-of-court statement, unsupported by any other evidence, . . . even if believed, is not sufficient to justify conviction.” See
On appeal, Appellant asserts that “[i]t is the purview of the jury to decide if the confession . . . is corroborated by other admissible evidence” and that “no competent attorney would reject [a corroboration] charge as it benefits his own client.” But even assuming that Appellant‘s statements constituted “confessions” rather than “admissions” and therefore required corroboration, we are unpersuaded that counsel performed deficiently in failing to request a corroboration charge. See Hooper v. State, 313 Ga. 451, 455-456 (1) (870 SE2d 391) (2022) (assuming that an appellant‘s statements were confessions for purposes of analyzing a claim that
Appellant does not explain why it was objectively unreasonable for trial counsel to conclude that Appellant‘s statements were adequately corroborated and therefore that a corroboration charge would not aid in the defense. Notably, the record supports trial counsel‘s conclusion, as “several particulars” of Appellant‘s statements “were corroborated” by other trial evidence. Hooper, 313 Ga. at 456 (1) (holding that the “evidence was sufficient to corroborate [the appellant‘s] confessions under the applicable standard“). For example, Selph‘s testimony that Appellant was the shooter, and eyewitness testimony that a man matching Appellant‘s description shot the victim, corroborated Appellant‘s admission that he had shot Smith. Likewise, Appellant‘s admission that he shot Smith in an effort to help Chanel recover money and drugs was
Nor has Appellant explained why it was unreasonable for trial counsel to conclude that he would confuse the jury by arguing, on the one hand, that jurors should not believe Appellant‘s statements because they were inadequately corroborated, and, on the other hand, that jurors should believe Appellant‘s conduct was coerced based on those same statements. Given trial counsel‘s theory of the defense and the fact that sufficient trial evidence corroborated Appellant‘s statements, we cannot say that trial counsel adopted a “patently unreasonable” trial strategy in forgoing a corroboration charge. Bates, 313 Ga. at 62 (2) (citation and punctuation omitted).
5. Finally, Appellant asserts a cumulative-error claim. “Under State v. Lane, 308 Ga. 10 (838 SE2d 808) (2020), we must consider collectively the prejudicial effect, if any, of trial court errors, along with the prejudice caused by any deficient performance
Judgment affirmed. All the Justices concur, except LaGrua, J., disqualified.