ELLINGTON v. THE STATE.
S22A0477
In the Supreme Court of Georgia
Decided: August 9, 2022
WARREN, Justice.
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.
Vincent Ellington was tried by a Fulton County jury and convicted of malice murder and other crimes in connection with the shooting death of Jeremy Kanard Fulton.1 Ellington raises two claims of error on appeal: (1) the evidence presented at trial was insufficient to support his convictions; and (2) the trial court erred when it limited his cross-examination of one of the State‘s witnesses. As noted in footnote 1 and in Division 4, we have identified a merger error that requires us to vacate in part and remand for resentencing. Otherwise, as explained more below, we affirm Ellington‘s convictions.
1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On the evening of May 6, 2016, a large group of people was hanging
According to Ellington‘s girlfriend, Nicole Durden, Ellington borrowed her burgundy Chevrolet Impala that night and drove Durden‘s two-year-old son, Meshiah, to the shopping center. Other witnesses who were at the shopping center testified that Ellington was also accompanied by an acquaintance who was wearing a straw hat. Ellington and the man with the straw hat went inside the barbershop to sell clothes and other merchandise. Multiple witnesses testified that Ellington was wearing an orange shirt and had a baby with him.2
When Fulton tried to purchase clothes from the man in the straw hat, the two men started arguing over the price. One witness testified that she saw a “dude” wearing an “orange sweater” with a baby in the barbershop with another “guy selling clothes” in a straw hat. She saw the man in the straw hat arguing with Fulton, and during that argument, the man wearing orange left the barbershop carrying the baby. Another witness, John Hill, testified that a man was selling “merchandise” inside the barbershop with another man who was holding a toddler. The man with the toddler exited the barbershop, and the barbershop owner then asked the man selling merchandise to leave. A few seconds later, the man who had been holding the toddler returned inside the barbershop “to get his companion and leave.” The two men then exited the barbershop.
Approximately 15 or 20 seconds later, Hill also left the barbershop and went near his car in the parking lot to urinate. Hill testified that “[s]hortly after” he went outside, he “heard a little commotion” and “quarrelling.” Hill turned around and saw “two guys at the back end of a car,” then he saw a raised arm and heard three gunshots. Hill testified that he did not see the gun and that he could not describe or identify the two men because it was dark outside. But he heard a “bumping sound” that he assumed was the car “rolling over” or “back[ing] into” the victim, later verified to be Fulton, because “he fell right directly behind the car.” After Fulton was shot, the shooter jumped into a car, which witnesses described as “maroon or burgundy” or “red,” and drove away. Despite witnesses’ attempts to help Fulton, he died at the hospital in the early morning hours of May 7; the medical examiner who performed the autopsy concluded that the cause of death was a gunshot wound to the chest.
Two other witnesses in the parking lot described the shooter. One of them testified that the person firing the gun was a man wearing an orange shirt, though he later expressed uncertainty about the shooter‘s shirt color. This witness did not see Fulton with a gun at any point, but heard multiple gunshots before he saw Fulton fall “facedown” to the ground. The other witness testified that she saw a man in an “orangey-colored” shirt shooting in the parking lot. When they were later shown photographic lineups, neither of these witnesses was able to identify Ellington as the shooter.
According to Durden, Ellington and his acquaintance arrived at her apartment between 11:00 p.m. and 12:00 a.m. that night to drop off Meshiah. Durden testified that when Ellington entered her apartment, he looked “shocked” and told her that “some dudes followed him out to the car” and “a shooting started.” Durden testified that Meshiah looked as if “something happened that scared him.” After leaving Meshiah with Durden, Ellington and his acquaintance left Durden‘s apartment. The next day, Durden went outside and saw that her car was full of bullet holes that had not been there the night before. She also testified that some of those bullet holes were near where Meshiah would sit in his car seat in her car. Durden was “upset” and called Ellington, who just repeated that there was a shooting.
As part of law enforcement‘s investigation of the case, Detective Jamael Logan obtained a copy of a video surveillance tape from an Atlanta Police camera located near the crime scene that partially captured the events in the shopping center parking lot the night Fulton was shot. That surveillance video, which was admitted into evidence and played for the jury at trial, appeared to show a man wearing an orange shirt in the parking lot around the time of the shooting and then a car that matched witnesses’ descriptions of the shooter‘s vehicle backing out of the lot.
The afternoon following the shooting, after viewing the surveillance video and speaking with witnesses, Detective Logan issued a “lookout citywide” for a “maroon four-door Chevy Impala possibly with damage of bullet holes.” That night, while working an evening shift as a security guard at Durden‘s apartment complex, Sergeant David Remec received an anonymous call about a “suspicious vehicle in a back parking lot.” Behind the apartment complex, Sergeant Remec found a “maroon-in-color” Chevy Impala that had “fresh Bondo” on the front right of the car, and he noticed that the front right tire was a “used tire that was just put on the vehicle.” Upon locating the vehicle, Sergeant Remec contacted the Atlanta Police Department‘s homicide unit, Detective Logan obtained a search warrant, and Durden‘s car was towed. A crime scene technician processed the car for evidence and latent fingerprints, took photos, and collected as evidence (among other things) an AutoZone bag that contained Bondo and a can of primer.
Ellington was arrested in July 2016. In a recording of Ellington‘s call to Durden from jail, Ellington told Durden to “stay silent4 and stay strong” and said, “don‘t let them folks come to you with no bulls**t.” Days later, Detective Logan searched Ellington‘s house. During that search, Detective Logan did not find a gun or any of the clothing that witnesses stated they saw the shooter wearing, such as an orange shirt. When Ellington was made aware of that fact, he commented on a recorded phone call from jail to Durden that law enforcement would “never find” those items because they were “looking in the wrong house.” In the weeks following his arrest, Ellington called Durden multiple times. Recordings of those calls reveal that Ellington asked Durden questions such as, “Are you rolling with [me] or against [me]?” and “Are you going to leave [me] in [here]?”
At trial, Ellington moved for a directed verdict after the State finished presenting evidence, arguing that the State presented only circumstantial evidence and failed to present any witnesses who “put[] a gun in Mr. Ellington‘s hand” or “identified him as being the person who actually shot Mr. Fulton.” The trial court denied Ellington‘s motion for a directed verdict, and the jury later convicted Ellington on all counts except aggravated assault with a motor vehicle.
2. Ellington contends that the trial court erred in denying his motion for a directed verdict because the evidence was insufficient to sustain his convictions. To that end, Ellington asserts that the State‘s case was based entirely on circumstantial evidence and that the State presented no evidence from which the jury could find that he possessed the requisite intent needed to prove the
When evaluating a challenge to the sufficiency of the evidence as a matter of constitutional due process, we view all of 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 of the crimes for which he was convicted. See Jones v. State, 304 Ga. 594, 598 (820 SE2d 696) (2018) (citing Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979)). “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.” Fitts v. State, 312 Ga. 134, 141 (859 SE2d 79) (2021) (citation and punctuation omitted). Under this review, we leave to the trier of fact “the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts,” Smith v. State, 308 Ga. 81, 84 (839 SE2d 630) (2020), we do not reweigh the evidence, Ivey v. State, 305 Ga. 156, 159 (824 SE2d 242) (2019) (citation and punctuation omitted), and “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State‘s case, the jury‘s verdict will be upheld,” Clark v. State, 309 Ga. 473, 477 (847 SE2d 364) (2020) (citation and punctuation omitted).
Additionally, as a matter of Georgia statutory law, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused,”
With respect to Ellington‘s malice murder conviction, the State was required to prove that he “unlawfully and with malice aforethought, either express or implied, cause[d] the death of another human being.”
With respect to Ellington‘s conviction for cruelty to children in the third degree, the State was required to prove, based on the theory it advanced in this case, that Ellington committed a “forcible felony” as the “primary aggressor, having knowledge that a child under the age of 18 [was] present and [saw] or hear[d] the act.”
To the extent Ellington challenges the sufficiency of the evidence related to counts that were merged for sentencing purposes or vacated by operation of law—felony murder, aggravated assault with a firearm, and possession of a firearm by a convicted
With respect to the remaining counts, the evidence presented at trial was sufficient to convict Ellington as a matter of constitutional due process and as a matter of Georgia statutory law. Here, two witnesses testified that they saw Ellington at the scene of the crimes—the shopping center—around the time of the murder, and that he had a small child with him at the time, was wearing an orange shirt, and was selling merchandise with another man. Witnesses also saw Ellington‘s acquaintance arguing with Fulton, and then Ellington and his acquaintance leaving together shortly before the shooting. There was also testimony that there was arguing in the parking lot before the shooting, that the shooter fired multiple shots at the unarmed victim, and that the shooter ran over the victim with a car after shooting him. In addition to the two witnesses who identified Ellington in photographic lineups and at trial as the man in the orange shirt, multiple other witnesses also identified the shooter as wearing an orange shirt and as driving a car that matched the description of the burgundy Chevrolet Impala belonging to Durden, who testified that Ellington drove himself and Meshiah in the burgundy Impala that night. These eyewitness accounts were also corroborated by surveillance video from the nearby Atlanta Police camera. Moreover, the State presented evidence of Ellington‘s behavior, statements, and actions after the crimes that included Durden‘s testimony that Ellington looked “shocked” and Meshiah looked “scared” when they arrived back at her apartment the night of Fulton‘s murder; Ellington‘s admissions that he was present during a shooting that night; Ellington‘s attempts to have the bullet holes and other damage to Durden‘s car repaired the next day; and incriminating statements Ellington made during jailhouse phone calls after his arrest. From this evidence, a reasonable jury was authorized to conclude that Ellington possessed a firearm and was the person who shot and killed Fulton—i.e., that he committed the relevant acts; that he did so with malice aforethought—i.e., the requisite intent; and that he did so with knowledge that Meshiah was present and heard the act. See
Moreover, to the extent Ellington relies on certain inconsistencies across the various witnesses’ testimony about the night of the crimes, the resolution of any such conflicts or inconsistencies in the evidence is for the jury, and we will not reweigh that evidence on appeal. See Smith, 308 Ga. at 84; Ivey, 305 Ga. at 159. Although Ellington points to the absence of physical evidence such as fingerprints, DNA, or ballistics evidence specifically linking him to the crimes, and contends there was no testimony that Ellington had a firearm or discharged a firearm at Fulton, we have recognized that “[a]lthough the State is required to prove its case with competent evidence, there is no requirement that it prove its case with any particular sort of evidence,” Plez v. State, 300 Ga. 505, 506 (796 SE2d 704) (2017), such as DNA evidence or fingerprints, Gittens v. State, 307 Ga. 841, 842 (838 SE2d 888) (2020).
Finally, Ellington contends that the State did not exclude every other reasonable hypothesis except for his guilt. See
The evidence presented at trial and summarized in part above was sufficient as a matter of constitutional due process for a rational trier of fact to have found Ellington guilty beyond a reasonable doubt of the crimes for which he was convicted, see Jackson, 443 U.S. at 319, and for a rational trier of fact to find no reasonable hypothesis other than Ellington‘s guilt, see
3. Ellington contends that the trial court erred when it prohibited him from cross-examining Durden more fully regarding unrelated criminal charges that were pending against her at the time she testified at his trial. Specifically, he contends that by restricting Durden‘s cross-examination, the trial court violated Ellington‘s right to confront witnesses who testify against him under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section I, Paragraph XIV of the Georgia Constitution.6 For the reasons explained below, this enumeration of error fails.
During a sidebar conference at trial, the State raised concerns that Ellington planned to impeach Durden by cross-examining her about the facts of her then-pending aggravated assault case in Fulton County. The State objected that such questioning would constitute improper character evidence, but agreed that the type of crime being charged and the fact that the case was pending could be properly admitted into evidence. Ellington‘s trial counsel explained that he wanted to ask Durden: “[do] you understand that you are charged with aggravated assault for pointing a handgun at the head of [another person]?” as stated in the indictment for those charges. He further noted he was “not trying to go past the face of the indictment” and was “not looking to go into the underlying facts behind the allegations.”
The trial court ruled that Ellington was permitted to elicit on cross-examination what crimes Durden was charged with, when she was indicted, and whether the charges remained pending—but not the underlying facts or circumstances of the charged offenses, which were referenced in Durden‘s indictment. Further, the court did not permit questioning on the potential sentences for the charged crimes. Ellington‘s attorney did not object but responded: “Okay. Thank you, Judge.”
Ellington‘s trial counsel asked Durden on cross-examination if she had a pending case in Fulton County for aggravated assault and reckless conduct, if she had been indicted for those charges, if her pending case was brought by the same District Attorney‘s office as Ellington‘s case, and if her pending case impacted her testimony in Ellington‘s case. Durden acknowledged the pending charges and denied that her pending case affected her testimony.
In denying Ellington‘s motion for new trial on this enumeration, the trial court found that he failed to object to the court‘s limitations on Durden‘s cross-examination; that the trial court did not abuse its discretion in
Because Ellington made no objection to the trial court‘s ruling regarding the scope and limits of his cross-examination of Durden, we review that ruling only for plain error. See
reasonable dispute, . . . must have affected his substantial rights, and . . . must have seriously affected the fairness, integrity or public reputation of judicial proceedings.” McKinney, 307 Ga. at 134 (citation and punctuation omitted).
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,”
4. Even though Ellington does not raise any merger issues on appeal, our review of the record shows that his conviction for possession of a firearm during the commission of a felony (Count 8) should have merged for sentencing purposes into the conviction for possession of a firearm by a convicted felon during the commission of a felony (Count 10). See Marshall v. State, 309 Ga. 698, 701 (848 SE2d 389) (2020); see also Dixon v. State, 302 Ga. 691, 697-698 (808 SE2d 696) (2017) (explaining that although this Court will only exercise its discretion to correct unraised merger errors that benefit criminal defendants in “exceptional cases,” this Court‘s general practice is to exercise its discretion to sua sponte correct merger errors that harm a defendant). And because the trial court purported to impose a sentence on Count 8 that would run consecutive to his malice murder sentence and would be followed by another consecutive sentence on Count 10, we vacate Ellington‘s conviction on Count 8 and remand the case to the trial court for resentencing. See Edwards v. State, 301 Ga. 822, 823 n.1, 829 (804 SE2d 404) (2017).
Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur.
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