BATTLE v. THE STATE; CARTER v. THE STATE
S17A0714, S17A1301
Supreme Court of Georgia
August 14, 2017
301 Ga. 694
HINES, Chief Justice.
Co-defendants Marcus Battle and Jacobey Carter appeal their convictions and sentences for malice murder and felony murder, respectively, and multiple counts of aggravated assault with a deadly weapon, aggravated
The evidence construed in favor of the verdicts showed the following. On the evening of September 7, 2012, Kevin Brittain, Kenneth Roberts, Walter Williams, Jearmain Finch, Travron Gill, and Kyle Pope were “hanging out” and smoking marijuana in the carport of Brittain‘s home on Erin Avenue in Fulton County. They were not selling marijuana and did not have firearms. After about an hour had passed, three to five African-American men with shirts over their faces and wielding pistols emerged from around a corner and yelled at the group, “freeze, don‘t nobody move,” “don‘t nobody reach for a pistol,” “put your hands up,” and “y‘all know what it is.” The six friends raised their hands, but within seconds the gunmen started shooting. Brittain stayed in place with his head down. Pope ran around the outside of the house and hid in some bushes. Williams took off running but was shot “in the rear.” Finch had his hands up and was first shot in the hand, and as he turned around and tried to run he was shot in the back and the left foot and fell to the ground; he was hospitalized for almost two months and sustained impairment to his ability to walk. Gill kept his head down, but after seeing Finch fall, he
Earlier that day, Adrieonna Jumper, who was then dating Carter, drove him around the area of the shooting in her rented white Hyundai Sonata. At one point, Carter exited the car, walked up the street, and spoke with a group of people in the “Big Four” store. One of the men, “Kyshawn,” said that someone at the Chevron station had jewelry and money in his pocket, that he knew where the man was, and that he “got to move.” Roberts wore a very visible large diamond watch with a diamond link. Kyshawn asked who wanted to go rob the person, and Harris asked, “what‘s the lineup,” i.e., who was going along on the robbery. Battle discussed going and decided to join in the robbery. Carter returned to Jumper‘s car and asked Jumper if she could give him and the group a ride, and Jumper agreed. She recognized Harris and referred to him by his nickname, “Ding.” She did not then know Battle by name, but she noticed that he had dreadlocks, and later identified him in a photographic lineup. Carter gave Jumper directions to Erin Avenue but did not say why they were going there, and Jumper drove them to Brittain‘s home.
Following the shooting, the gunmen returned to Jumper‘s car, and she drove Harris, who was wounded, to the hospital. Battle did not stay with them. Later on, Jumper and Carter cleaned the back seat of the car with soap and water. After he was shot, Finch told his friends to take him to the fire station up the street from the house. They left Finch at the fire station and brought firemen back to the house to show them Roberts‘s body. Police and EMTs came to the scene of the shooting. Finch was taken to the hospital. Subsequently, Williams realized that he had been shot, and he was then taken to the hospital. Later on the night of September 7, Battle was at a neighborhood club and told Nathaniel Howard that he had gotten into a shootout, that one guy was running, and that he shot him in the back and thought that he had killed him. Earlier that day, Howard had seen Battle with a revolver. Battle also was worried that he had dropped his cell phone.
The detective that responded to the shooting went to the hospital and noticed that both Harris and Finch were brought in around the same time, but he did not immediately get to speak to either of them. The detective collected Harris‘s clothing and possessions as evidence. Among Harris‘s possessions was Battle‘s cell phone, which was later confirmed as the phone Battle was carrying and using the day of the shooting. Records of a call to Battle‘s phone ten minutes before the shooting revealed that the phone was then located in the general geographic area of the crime scene.
The investigating detective received a tip that Carter was related to the investigation, and he had a description of a white four-door sedan. He tracked the car to Jumper and Carter, and was able to impound it. Harris‘s blood was found in the vehicle. Video surveillance at the hospital showed that Harris was removed from the rear passenger‘s side of this car, which had blood stains in the rear passenger seat. The detective interviewed Jumper, and she admitted that she was at the scene of the shooting with Carter. She told the detective that Harris had flagged them down while they were driving, that Carter spoke with Harris, that Carter asked her if they could get a ride, that Carter gave her directions to Erin Avenue, and that Carter instructed her as to how to position the vehicle.
The detective interviewed Carter, and Carter admitted that he was at the scene and that he had given Jumper directions to Erin Avenue but he maintained that he was sitting in the car next to Jumper during the shooting. In interviewing Howard, the detective determined that the motive behind the shooting was robbery and that Battle, Carter, and Harris were involved. Howard identified all three as being related to the shooting.
Case No. S17A0714
1. Battle does not contest the legal sufficiency of the evidence of his guilt. Nevertheless,
2. Battle contends that the State violated its duty under Brady v. Maryland to disclose exculpatory evidence in failing to reveal that there was a purported “deal” between state and federal authorities regarding witness Howard‘s federal sentence at the time of trial, as Howard had received a two-year reduction in his federal sentence in exchange for his testimony against Battle. However, Battle does not dispute that he did not raise this Brady claim at trial or in his motion for new trial, as amended; therefore, he has waived the right to raise this objection in the present appeal. Pierce v. State, 286 Ga. 194, 196 (2) (686 SE2d 656) (2009).
In any event, Battle provides only speculation that any reduction in Howard‘s federal sentence3 was directly related to his trial testimony inculpating Battle or that the State had any knowledge of such a deal.4 In fact, Howard‘s trial testimony belies such claim. Howard acknowledged that he was then incarcerated on federal charges; that he had a gun charge and prior felonies, including three charges of possession of marijuana, a “gang charge,” and an aggravated battery charge; and that he knew Battle, Harris, and Carter. The prosecutor asked Howard why he testified against people he had known for years, and Howard said it was because law enforcement authorities had asked him about the shooting. The prosecutor asked Howard if he was hoping to get a deal or if he and the prosecutor had “any deal on this,” and Howard responded, “No, ain‘t no deal.” Then when asked what he was hoping would happen, Howard said that nothing was guaranteed, but that he was hoping that “they might” give him a reduction in his sentence.
3. Battle next contends that the district attorney should have disqualified himself and his office from prosecuting the case because the murder victim, Roberts, was the son of a longtime employee of the district attorney‘s office. Battle maintains that because of the employment the district attorney had a personal interest in the case that created the appearance of impropriety and a conflict of interest. But, the contention is unavailing. Battle did not raise this issue pre-trial or at trial, but first made the claim in his amended motion for new trial. However, pretermitting the timeliness of the contention, it fails on the merits.
Certainly, a conflict of interest or the appearance of impropriety from a close personal relationship with the victim may be grounds for disqualification of a prosecutor. See Head v. State, 253 Ga. App. 757, 758 (2) (560 SE2d 536) (2002). But, here there was no evidence that either the district attorney or the assistant district attorney directly prosecuting the case had any conflict of interest or a personal relationship with the victim or his mother or any personal interest in obtaining the sought convictions.5
In order for Battle to succeed on his claim of ineffective assistance, he must demonstrate both that his trial counsel‘s performance was deficient and that there is a reasonable probability that the result of his trial would have been different but for such deficiency. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If Battle fails to prove one prong of the Strickland test, then this Court need not examine the other prong. Norwood v. State, 297 Ga. 226, 227 (2) (773 SE2d 225) (2015). Furthermore, in this Court‘s review we accept the trial court‘s factual findings and credibility determinations unless they are clearly erroneous, but we independently apply the legal principles to the facts. Id.
Carter did not testify at the joint trial with Battle. The basis of the Bruton claim is testimony of the detective who interviewed Carter after speaking with Jumper. The detective related, in relevant part, that Carter “gave a very consistent, similar version of events” as that given by Jumper: that they were flagged down to give a ride to Erin Avenue; that Carter saw Harris, who he referred to by the nickname “Ding“; that Carter “passively admitted” that he gave directions to Jumper; that he described his interactions with “a guy with dreadlocks,” but did not call Battle by name; that he talked to Harris and “the guy with dreadlocks” about purchasing marijuana; that after Jumper drove them to Erin Avenue, Harris and “the man with dreadlocks” got out of the car and that they returned with a third man; that Harris returned to Jumper‘s car with a gunshot wound and that they drove him to the hospital; and that “the man with dreadlocks” came back to the car initially but then did not go to the hospital with them.
A defendant‘s right under the Confrontation Clause is violated under Bruton when there is a joint trial of co-defendants and the testimonial statement of a co-defendant who does not testify at trial is used to implicate the other co-defendant in the crime or crimes on trial. Ardis v. State, 290 Ga. 58, 60 (2) (a) (718 SE2d 526) (2011). But, ”Bruton excludes only the statement of a non-testifying co-defendant that standing alone directly inculpates the defendant.” Thomas v. State, 300 Ga. 433, 439 (2) (a) (3) (796 SE2d 242) (2017), quoting McLean v. State, 291 Ga. 873, 875 (3) (738 SE2d 267) (2012). There is no Bruton violation when the statement on its face does not incriminate the defendant but becomes incriminating only when linked with other evidence introduced at trial. Sutton v. State, 295 Ga. 350, 353 (3) (759 SE2d 846) (2014). Battle urges that the statements at issue were directly incriminating enough so as to violate Bruton. However, even assuming arguendo a Bruton violation, that is not the end of the inquiry.
A Bruton violation may not be prejudicial when the complained-of statements are substantially similar to evidence properly admitted at trial. Zackery v. State, 286 Ga. 399, 402 (3) (688 SE2d 354) (2010). And, reversal of a defendant‘s convictions for such a violation in the context of a claim of ineffectiveness of trial counsel is not warranted
Battle cannot show a reasonable probability that the result of his trial would have been different but for admission of the evidence of Carter‘s statements. Strickland v. Washington, supra. Thus, his claim that his trial counsel was ineffective for not objecting to such evidence must fail. Burgess v. State, supra at 315 (1).
Case No. S17A1301
5. Carter contends that the evidence was insufficient because there was no evidence introduced at trial that he planned or participated in the fatal shooting. In this Court‘s evaluation of the sufficiency of the evidence of a defendant‘s guilt, the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt pursuant to Jackson v. Virginia. Thomas v. State, 300 Ga. 433, 436 (1) (796 SE2d 242) (2017). We do not reweigh the evidence or resolve conflicts in trial testimony; but rather, we view the evidence in a light most favorable to the verdict or verdicts, with deference to the jury‘s assessment of the weight and credibility of the evidence. Id.
It is certain that a participant in a crime may be convicted for the crime although he or she is not the one who directly committed the crime.
(1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.
Here, the evidence showed that Carter intentionally aided or abetted the commission of the crimes by providing transportation for Battle and Harris; by directing the driver, Jumper, where to go to commit the crimes and then positioning her vehicle to flee the scene; staying with Jumper so that they could drive the defendants after the crimes were committed; and cleaning the car of evidence of the crimes. See, e.g., Reynolds v. State, 299 Ga. 781, 785 (1) (792 SE2d 393) (2016); Joyner v. State, 280 Ga. 37, 39 (1) (622 SE2d 319) (2005).
Simply, the evidence was sufficient to enable the jury to find Carter guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, supra.
Judgments affirmed. All the Justices concur.
Decided August 14, 2017.
Murder. Fulton Superior Court. Before Judge Markle.
Patrick J. Hannon, for appellant (case no. S17A0714).
Juwayn Haddad, for appellant (case no. S17A1301).
Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Paige Reese Whitaker, Lyndsey H. Rudder, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew M. Youn, Assistant Attorney General, for appellee.