S19A0118. BROXTON v. THE STATE. S19A0119. PENA v. THE STATE.
S19A0118. S19A0119.
Supreme Court of Georgia
306 Ga. 127
ELLINGTON, Justice.
FINAL COPY
Following a jury trial, appellant Joseph D. Broxton was convicted of the malice murder of Edward Chadmon, Oliver Campbell, and Rocqwell Nelson; the aggravated assault of Deion Harden, Falana Coley, and Jordan Turner; criminal attempt to commit armed robbery; and seven counts of violation of the Street Gang Terrorism and Prevention Act (the “Street Gang Act“). Broxton‘s co-defendant, appellant Daniel Luis Pena, was convicted of the malice murder of Chadmon and Nelson; the aggravated assault of Coley and Turner; criminal attempt to commit armed robbery; and five counts of violation of the Street Gang Act.1 On
Counts 11-18 were based on acts committed in DeKalb County on July 3, 2015. In Counts 11 and 12, Broxton and Pena were charged with criminal attempt to commit armed robbery by driving to the Stone Mountain Inn with firearms and with their co-conspirators with the intent to commit theft, and violation of the Street Gang Act for participation in criminal gang activity through commission of that crime. In Counts 13-16, Broxton and Pena were charged with the malice murder, felony murder, and aggravated assault of Chadmon, and violation of the Street Gang Act for participation in criminal gang activity through the commission of those crimes. In Counts 17 and 18, Broxton and Pena were charged with the aggravated assault of Darius Wilder and violation of the Street Gang Act for participation in criminal gang activity through the commission of that offense.
Counts 19, 20 and 22-33 were based on acts committed in DeKalb County on July 30, 2015. In Counts 19 and 20, Broxton was charged with the aggravated assault of Harden and violation of the Street Gang Act for participation in criminal gang activity through commission of that offense. In Counts 22-25, Broxton was charged with the malice murder, felony murder, and aggravated assault of Campbell and violation of the Street Gang Act for participation in criminal gang activity through the commission of those crimes. In Counts 26 and 27, Broxton and Pena were charged with the aggravated assault of Coley and violation of the Street Gang Act for participation in criminal gang activity through the commission of that crime. In Counts 28-31, Broxton and Pena were charged with the malice murder, felony murder, and aggravated assault of Nelson and violation of the Street Gang Act for participation in criminal gang activity through the commission of those offenses. In Counts 32 and 33, Broxton and Pena were charged with the aggravated assault of Turner and violation of the Street Gang Act for participation in criminal gang activity through the commission of that crime.
Broxton and Pena were tried before a jury on March 28-April 6, 2017. The jury found Broxton guilty of Counts 11-16, 19-20, and 22-33, and not guilty of Counts 17 and 18. The jury found Pena guilty of Counts 11-16, and 26-33, and not guilty of Counts 17 and 18. On June 22, 2017, Broxton was ordered to serve three consecutive sentences of life in prison without parole and an additional 60 years in confinement. Also on June 22, 2017, Pena was ordered to serve two consecutive sentences of life in prison without parole and an additional 40 years in confinement.
1. This case concerns multiple crimes committed by Broxton, Pena, and their co-indictees in July 2015. Viewed in a light most favorable to the verdicts, the evidence presented at trial shows the following. Broxton and Pena are members of a criminal street gang known as the “Gangster Disciples,” as well as an associated criminal street gang known as the “Hate Committee.” On or before July 30, 2015, Hate Committee members received word from their leadership*
More specifically, during the early morning of July 3, 2015, approximately 15 armed men, including Broxton, Pena, Rodricous Gresham, Quantavious Hurt, and Karim Ficklin, drove in several cars to the Stone Mountain Inn in DeKalb County for the purpose of committing robbery. Upon arriving, they saw that the police were there, and so they left. Broxton, Pena, Gresham, and Ficklin returned to the Stone Mountain Inn later that morning, and they went to a room where drugs were being sold. Ficklin testified at trial that “Fat,” identified by other testimony as Anthony Caldwell, rode with them.
Chadmon, who was holding a gun, was one of several people in the room. After an argument among those present, Pena and Chadmon began to struggle for possession of Chadmon‘s weapon.
At approximately 2:00 a.m. on July 30, 2015, Deion Harden was walking home through a DeKalb County apartment complex when a white car pulled up. He was shot five times, after which the car drove off. Harden survived. At trial, Hurt testified that he saw Broxton shoot Harden. Harden denied knowing who shot him, and he denied telling his stepfather who shot him. Harden‘s stepfather, however, testified that he had asked Harden who shot him, and Harden answered that it was “Joe.” Based on phone records and his independent investigation, a DeKalb County district attorney investigator testified that at 1:55 a.m. on July 30, 2015, Broxton‘s
Around 6:30 a.m. on July 30, 2015, a DeKalb County police officer responded to a call of “shots fired” at the Valero gas station on Candler Road. The officer found Campbell in the driver‘s seat of a pickup truck, slumped over and unresponsive. Campbell‘s autopsy showed that he had been shot in his left hand, chest, and neck. At trial, Ficklin testified that Broxton never told him that Broxton killed anyone at the Valero, but Ficklin then acknowledged that he previously informed the police that Broxton told him Broxton “shot somebody at the Valero.” Hurt testified that Broxton told him that Broxton shot Campbell. The DeKalb County district attorney investigator testified that Broxton‘s cell phone was communicating with a cell tower located 1.1 miles from the location of the Valero shooting at 6:27 a.m. and 6:29 a.m. on July 30, 2015.
Also on July 30, 2015, at approximately 7:00 p.m., Coley went to visit her sister at the Windview Apartments on Central Drive in DeKalb County. She saw a dark blue BMW pull up to four men
At trial, the prosecutor asked Ficklin to tell the jury what happened when Coley got shot. Ficklin said that he, Broxton, Pena, and Hurt were driving in a dark blue BMW when they pulled past a group of people they believed to be members of the Bloods gang. They drove past the group to the back of the apartment complex, turned around, jumped out of the car, and began shooting. Ficklin testified that only he and Hurt got out of the car, but he also acknowledged that he had said previously that it was Broxton, Pena, and Hurt who jumped out of the car and began shooting. Hurt testified that he, Broxton, Pena, and Ficklin had been driving in a BMW on Central Drive “looking for trouble,” when they saw individuals associated with the Bloods gang. According to Hurt, they turned around, and Broxton, Pena, and Ficklin got out of the car and shot at the suspected gang members, who “took off running.”
On July 31, 2015, a DeKalb County police officer received an alert concerning a stolen blue BMW. The officer located the BMW at an Economy Inn near I-20. Broxton later acknowledged in a police interview that he had seen the BMW parked at the motel where he had been staying, and he then admitted that he had driven the BMW and that Ficklin was with him at the time. A crime scene investigator found a “Liberty” brand 9-millimeter shell casing on the driver‘s side floor of the BMW.
Broxton‘s cell phone was seized during his arrest. The phone contained a record of outgoing text messages stating “they locking me up,” and that his “strap,” which a detective testified referred to a gun, was under the seat. The phone also contained a record of Internet searches for “breaking news Atlanta shooting,” “Candler Road shooting 2015,” and “shooting at Valero gas station.” On July 31, 2015, the phone had accessed websites referencing “DeKalb police investigate shooting on Candler Road,” and “One killed in double shooting in DeKalb County Apartment.”
During trial, the State presented testimony of a GBI firearms and ballistics expert. He testified that the Glock .40-caliber handgun found when Broxton was arrested was a match for shell casings found at the scenes of the Campbell and Coley shootings. He
During the trial, the State presented evidence of Broxton‘s and Pena‘s association with the Gangster Disciples and the Hate Committee. An expert on street gang identification testified that the Gangster Disciples is “one of the most organized gangs in the country,” and that the Hate Committee acts as enforcers for the Gangster Disciples. The witness explained that the numbers “360” and “720” have significance to the Gangster Disciples in that they represent “degrees of knowledge” concerning the organization. The six-point star also has meaning for the Gangster Disciples, the witness testified, and may be understood as showing gang
Gresham testified that he was a member of the Hate Committee and that some Hate Committee members have the word “Hate” tattooed on their body. Ficklin testified that he was a member of the Gangster Disciples, and that Broxton, Pena, and Gresham have “Hate” tattooed on their bodies, signifying their membership in the Hate Committee. Hurt testified that he, Broxton, and Pena were members of the Gangster Disciples and of the Hate Committee.
Ficklin testified that, concerning events on the evening of July 30, 2015, “Smurf,” identified in other testimony as Ronald Glass, a leader of the Hate Committee and a member of the Gangster Disciples, had told him about “folks getting the green light . . . around Central.” According to Ficklin, persons who have gotten the green light are subject to being beaten or killed. Hurt testified that,
After the presentation of the State‘s evidence, the trial court informed the jury that the parties had stipulated that both defendants were associates and/or members of the Hate Committee; that the Hate Committee is a criminal street gang; and “that there is a nexus between crimes committed and the furtherance of the interests of the criminal gang.” Broxton then testified in his defense. Pena chose not to testify.
The evidence presented at trial, as summarized above and as further discussed in Division 4, infra, was sufficient to authorize the jury to find Broxton and Pena guilty of the crimes for which they
Case No. S19A0118
2. Broxton contends that his trial counsel was ineffective in stipulating that elements of the Street Gang Terrorism and Prevention Act,
To establish that his trial counsel‘s performance was professionally deficient, a defendant must demonstrate that his attorney performed “in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional
The State and the defense have stipulated and agreed that both defendants are associates and/or members of the Hate Committee. Likewise, they also stipulate that the Hate Committee is a criminal street gang and that there is a nexus between crimes committed and the furtherance of the interests of the criminal gang.
The trial court then directed the jury that, “when determining the guilt or innocence of each defendant as to Counts 12, 16, 18, 20, 25, 27, 31, and 33, . . . the only remaining issue is the State must prove to you beyond a reasonable doubt whether each defendant is guilty of the predicate acts.” The specified counts alleged violations of
As relevant here, to establish a violation of the Street Gang Act, the State must show the existence of a criminal street gang;4
Broxton‘s trial counsel did not testify at the motion for new trial hearing. We presume that trial counsel‘s decision to enter into the stipulation was a matter of strategy and trial tactics;
Broxton readily acknowledged during his direct testimony that he was a member of both the Hate Committee and Gangster Disciples. However, Broxton explained, he made his money by selling drugs and by credit card fraud. Broxton also testified that, after exiting a nightclub in the early morning of May 25, 2015, he was shot four times. According to Broxton, he was released from the hospital in late June or early July 2015, and he was required to carry a colostomy bag due to having been shot in the lower stomach. He then proceeded, in his direct testimony, to deny his participation in the crimes for which he had been indicted, all of which occurred within a month of his release from the hospital after suffering serious injury.
As to the events at the Stone Mountain Inn, Broxton testified that the first trip to the inn was for the purpose of obtaining drugs
Broxton‘s testimony, as guided by his trial counsel on direct, showed that his theory of defense was that, although he was a gang member, he did not commit any of the charged crimes, including those predicate to the Street Gang Act charges. Consistent with this defense, the stipulation made it clear that the State was required to prove that Broxton was guilty of the predicate acts beyond a reasonable doubt.
By the time the stipulation was read to the jury, the State had presented overwhelming evidence that Broxton was a member of the Hate Committee. The State had also come forward with evidence that the Hate Committee was a criminal street gang and that the commission of the predicate acts was intended to further the
Notwithstanding the stipulation to certain elements of the Street Gang Act charges, Broxton‘s testimony, if believed by the jury, provided a defense to those charges because he denied committing the predicate acts. A competent attorney could conclude that Broxton‘s honesty in acknowledging through his testimony and the stipulation that he was a gang member would bolster his
Broxton‘s stipulation was therefore “a valid trial strategy[,] and reasonable trial strategy does not constitute deficient performance.” Pruitt v. State, 282 Ga. 30, 35 (4) (e) (644 SE2d 837) (2007) (citations omitted). See United States v. Monghan, 409 Fed. Appx. 872, 878 (III) (B) (6th Cir. 2001) (factual stipulations to elements of a crime are often the product of a sound trial strategy, and defendant had nothing to gain by challenging obvious issues and “perhaps had much to lose by adding unnecessary complexity and time to the trial“); Barlow v. United States, 2014 U. S. Dist. LEXIS 48483 (III) (B) (E.D. N.Y. Apr. 8, 2014) (strategy of counsel in stipulating to an element of the charged crime and focusing the defense on attacking the evidence supporting another element was
3. Broxton claims that the trial court erred in allowing Ficklin‘s written statement to the police to go back into the jury room in violation of the continuing witness rule. See, e.g., Rainwater v. State, 300 Ga. 800, 803 (2) (797 SE2d 889) (2017) (“[I]t is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.“) (citation and punctuation omitted). The record shows that, during the course of their deliberations, the jury sent a note to the trial court asking for, among other things, a copy of Ficklin‘s written statement. After discussion among defendants’ counsel and the trial court, and with the express agreement of Broxton‘s counsel, the prosecutor read the statement to the jury in open court. Broxton does not show by reference to the record that Ficklin‘s written statement was, at any time, sent to the jury room, and he does not complain about the reading of the statement to the
Case No. S19A0119
4. Pena contends that the evidence was not sufficient to support his convictions for the crimes arising out of the shooting of Nelson and Turner, and that the trial court therefore erred in denying his motion for directed verdict of acquittal for the malice murder of Nelson (Count 28), the aggravated assault of Turner (Count 32), and the two counts of violation of the Street Gang Act predicated on those offenses (Counts 31 and 33).6 “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.” Smith v. State, 304 Ga. 752, 754 (822 SE2d
The evidence does not show that Pena drove the BMW, that he shot either Nelson or Turner, or that he exited the car when it stopped at the scene. However, “[e]very person concerned in the commission of a crime is a party thereto and may be . . . convicted of commission of the crime.”
Mere presence at the scene of the crime is not sufficient evidence to convict a defendant of being a party thereto; however, the jury may infer a common criminal intent from the defendant‘s presence, companionship, and conduct with the other perpetrators before, during and after the offense. See Butts v. State, 297 Ga. 766, 770 (2) (778 SE2d 205) (2015); Navarrete v. State, 283 Ga. 156, 158 (1) (656 SE2d 814) (2008). Here, evidence showed that on the evening of July 30, 2015, Pena, Broxton, Ficklin, and Hurt were seeking to shoot persons who had been “green-lit” by the Gangster Disciples. Hurt testified that, during the incident that led to Coley‘s injury, Pena was one of the gunmen who fired at suspected members of another gang. Pena remained in the company of his fellow gang members when, shortly thereafter, their car stopped at the scene of the Nelson and Turner shooting, after which the four of them left together.
Given the evidence that the four companions were acting together to seek out and shoot persons who had been “green-lit,” Pena‘s participation in the Coley incident, his presence at the scene of the Nelson and Turner shooting, and his flight from that scene, the jury could conclude that Pena shared in the criminal intent of the actual shooters. See Eckman v. State, 274 Ga. 63, 65 (1) (548 SE2d 310) (2001) (evidence showing that appellant shared in the criminal intent included that she was willingly present at the scene when the victims were killed and had been involved in her
(a) Pena contends that his trial counsel was ineffective in failing to file a pre-trial motion seeking immunity from prosecution based on self-defense. See
(b) Pena also contends that his trial counsel was ineffective in that he failed to file a motion to sever his trial from that of Broxton. Trial counsel testified at the motion for new trial hearing that he did not file a motion to sever because he had assessed that there was no legal basis for doing so.
The question of severance of the trial of defendants for a capital felony where the death penalty has been waived is within the discretion of the trial court. Factors which should be considered in exercising that discretion are (1) whether the number of defendants will create confusion; (2) whether there is danger that evidence against one defendant will be considered against another by the jury despite instructions from the court; [and] (3) whether the defenses of one defendant are antagonistic to defenses of another.
Id. at 596 (3) (citation omitted). Pena does not argue that the first two factors weighed in favor of severance, but asserts that Broxton‘s “other narrative” led to an unfair trial. Although Broxton chose to testify, he maintained that he was standing outside the room when Chadmon was shot at the Stone Mountain Inn, and that he was not present during the Coley shooting or the Nelson and Turner shooting. Broxton‘s defenses were not antagonistic to the defenses identified by Pena, particularly self-defense in the case of his actions
Furthermore, to require severance, the moving defendant must “do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing that a joint trial would lead to prejudice and a consequent denial of due process.” Lupoe v. State, 300 Ga. 233, 242 (2) (c) (794 SE2d 67) (2016) (citation and punctuation omitted). To the extent that Pena contends he was prejudiced by having to sit next to Broxton, who
Judgments affirmed. All the Justices concur.
Murder. DeKalb Superior Court. Before Judge Coursey.
The Moore Brown Law Group, Angela Z. Brown, for appellant (case no. S19A0118).
Manning Peace, Holly Y. Peace, for appellant (case no. S19A0119).
Sherry Boston, District Attorney, Lenny I. Krick, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.