FITTS v. THE STATE; FRANKLIN v. THE STATE
S21A0159, S21A0160
In the Supreme Court of Georgia
Decided: June 1, 2021
BETHEL, Justice.
In these related appeals, Donovan Raishad Fitts and Jermanique Vashon Franklin appeal their convictions for murder and other crimes in connection with the shooting deaths of Tenecia Posley and Barry Johnson.1 In Case No. S21A0159, Fitts asserts
that the trial court erred in admitting evidence of a subsequent shooting incident as intrinsic evidence and as other-acts evidence under
Viewed in the light most favorable to the jury‘s verdicts, the evidence presented at trial shows that Fitts and Franklin started dating in late 2014 and began living together in early 2015.2 The couple resided at the home of Fitts‘s godmother, Melba Ansley, who testified that Franklin, who was a nurse‘s assistant, moved in to care for her after her recent heart surgery. Ansley also testified that she considered Fitts to be her son, he had lived with her since he was 12 years old, and she allowed him to use her cell phone and her truck. Fitts‘s friend Deaundre Ross, who was dating Franklin‘s sister, often visited Fitts at Ansley‘s home.
During this time, Franklin was having an affair with Damian Calvin. Franklin had previously lived with Calvin at his house and was familiar with some drug activity occurring there. Calvin was a drug dealer, and he kept illegal drugs in his house. The two had plans to meet at a hotel about 45 minutes away on March 3, 2015, but Franklin rescheduled for the morning of March 4. Midmorning that day, right before she met Calvin at the hotel, phone records showed that Franklin called Fitts once on Fitts‘s own phone and several times on Ansley‘s phone, which was prepaid and therefore had no subscriber information.3 The cell-site location information for Fitts‘s phone placed him near Calvin‘s house during this time. Franklin testified that Fitts was using Ansley‘s phone because his own was broken. The two had no contact again until 11:22 a.m., when Fitts used Ansley‘s phone to call Franklin. Franklin testified that the phone calls were about repairs for Ansley‘s truck.
While at the hotel with Franklin, sometime between 11:00 a.m. and 11:20 a.m., Calvin received a call from Johnson, who said he was on Calvin‘s front porch. Johnson was a regular customer of Calvin. Calvin told Johnson that he was not there and to come back another time. Roughly ten minutes later, Calvin‘s cousin, Keith Robertson, called Calvin to tell him that, as he was driving past Calvin‘s house, he saw two men run from the house toward a truck parked across from Calvin‘s driveway in a sandpit. Robertson turned around so that he could go back to check on Calvin‘s house and then saw the truck leave the sandpit.4 On the phone, Calvin asked Robertson to check on both Calvin‘s son and Posley, who was Calvin‘s girlfriend at the time, inside the house. After driving up Calvin‘s driveway, Robertson saw Johnson dead on the front porch, still holding his cigarettes and keys. Robertson called for Posley, heard no reply, and told Calvin to hurry home. Robertson then called 911 at approximately 11:30 a.m. and waited at the end of Calvin‘s driveway for the police to arrive.
The police found the house thoroughly ransacked. The police also discovered shoeprints leading from an abandoned house next door through the woods to Calvin‘s backdoor, where someone had used a brick to break in. The police discovered Posley, who had been shot five times, on the floor in the corner of a bedroom, tightly bound with zip ties. Calvin‘s two-year-old son was found unharmed on the bed. Johnson had been shot eight times through the glass front door. Calvin testified that his drug merchandise and between $8,000 and $9,000 in cash were missing after the incident. A GBI firearms examiner testified that bullets and shell casings found at Calvin‘s house were all from the same gun; the police also later found shell casings from
After leaving the hotel, Franklin called Calvin a few times, starting at 11:27 a.m. In the afternoon, Fitts and Franklin met at the home they shared with Ansley and took Ansley‘s truck for repairs. Franklin testified that, on their way home, they picked up Ross and that Fitts and Ross spent the rest of the day at Ansley‘s house. That evening, GBI agents interviewed Franklin to corroborate Calvin‘s alibi. Franklin was not considered a suspect at that time. During that interview, she identified her boyfriend as “Donovan Ansley,” but gave his correct address.
Franklin did not continue her physical relationship with Calvin after the shootings. However, she asked him as often as every other day about whether there were leads in the case.
In October 2015, the GBI executed a search warrant at Ansley‘s house. In November 2015, Franklin agreed to be interviewed by the GBI. Franklin claimed that on the day of the crimes, she and Fitts returned straight home after dropping off Ansley‘s truck for repairs, and that Fitts then stayed in his room. She made no mention of Ross at that time. The police later arrested Fitts and Franklin.
While Fitts was in jail in March 2017, his sister asked him in a recorded call, “So you did the shooting?” Fitts responded, “No, but I was there, and I had a big part in it. Not with that one anyway.” Fitts‘s sister asked why Fitts would “do something like that,” referring to the crimes. Fitts recounted how badly he needed money but that the crime “wasn‘t supposed to go like that.” Fitts said that he knew what he did, that his situation pushed him to do certain things that he would not normally do, and that remembering the murders would eat him up when he was not busy or distracted.
At trial, following the close of the State‘s case-in-chief, Franklin moved for a directed verdict of acquittal under
Case No. S21A0159
1. Fitts asserts that the trial court erred by admitting evidence of a March 31, 2015 shooting incident, which the court admitted as intrinsic evidence or, alternatively, as evidence of other acts under
A few weeks after the murders, Deaundre Ross, who was Fitts‘s and Franklin‘s co-defendant, was driving an SUV with his brother as a passenger, while Fitts was driving a separate vehicle behind them. Ross exchanged gunfire with a third party, leaving shell casings on the street and inside the SUV. After the shooting, Ross‘s SUV broke down due to a bullet hole in its gas tank, so Fitts gave Ross and Ross‘s brother a ride back to Ross‘s father‘s house. Law enforcement officers later determined that the shell casings from this shooting incident matched the casings found at the scene of the murders and at Ansley‘s home where Fitts lived and Ross often visited, meaning that the same gun had been used at all three locations.
Before trial, the State filed a notice of intent to present evidence of the shooting incident under
Here, the State relied heavily on the evidence of the subsequent shooting to try to prove Ross‘s participation in the murders, and the evidence presented only indirectly implicated Fitts in the shooting. At trial, the State presented evidence that Fitts was driving behind Ross‘s SUV when Ross used a gun in the shooting, that the gun was the same one that was used in the murders three weeks earlier and at Ansley‘s house where Fitts lived and Ross often visited, and that Fitts later drove Ross and Ross‘s younger brother home. However, there was no evidence presented at trial that Fitts handled the gun during the shooting incident or was otherwise involved in that shooting, or that Fitts was investigated for any crime in relation to the shooting, unlike Ross.
In its closing argument, although the State argued that Fitts was with Ross “doing another shooting together” when the murder weapon was used in the shooting incident, the State emphasized the shooting evidence with respect to Ross, saying multiple times that the gun belonged to Ross and that it was Ross‘s personal weapon that he would not have shared. And the trial court gave a limiting instruction in the final jury charge directing the jurors to consider the State‘s evidence of other crimes only insofar as it related to the issues of knowledge, intent, and participation in a conspiracy.
In contrast to Fitts‘s tenuous connection to that shooting incident, the evidence presented at trial as to Fitts‘s guilt for the murders was strong. Most significantly, in the recorded jail phone calls with his sister, Fitts admitted to playing a “big part” in the crimes (although he denied shooting the victims), gave his motive for the robbery, and said that he felt guilty about his participation. Also, the tire tracks found at the scene were consistent with the tires on Ansley‘s truck that Fitts drove, and cell-site location data placed Fitts in the vicinity of Calvin‘s house during the crimes. Therefore, we conclude that under the circumstances of this case, it is highly probable that the admission of the evidence concerning the later shooting incident did not contribute to the jury‘s verdicts. See Lofton v. State, 309 Ga. 349, 356-59 (3) (846 SE2d 57) (2020) (error was harmless where prosecution presented strong independent evidence of guilt, jury properly learned that appellant had access to murder weapon, evidence was not significantly relied on in State‘s closing argument, and “any harm . . . was lessened because the State did not try to use the [evidence] to establish that Appellant rather than [his co-defendant] was the shooter“); Taylor, 306 Ga. at 283 (2) (error was harmless because the evidence was strong and there was no contention that prosecution heavily relied on erroneously admitted evidence in closing argument).
2. Fitts asserts that he was denied constitutionally effective assistance of counsel when his trial counsel failed to object to hearsay testimony he claims was barred by the Confrontation Clause of the United States Constitution and to move for a mistrial. We disagree.
To prevail on this claim, Fitts must establish both that his representation was professionally deficient and that he suffered prejudice as a result, meaning that but for counsel‘s deficient performance, a reasonable probability exists that the outcome at trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Fitts cannot establish either deficient performance or prejudice, then we need not address the other, and his claim will not succeed. See id.
During the direct examination of Ross‘s father, Ross‘s counsel asked about his son‘s involvement in the March 31, 2015, shooting incident: “Did you know – did [Ross], your son, tell you anything about the gun he had that day?” Ross‘s father responded, “I know – as far as the gun is concerned – he
Fitts argues that because the statement made by Ross‘s father violated Fitts‘s constitutional right under the Confrontation Clause and Ross‘s defense counsel‘s question itself was meant to elicit inadmissible hearsay, his own trial counsel‘s failure to object to this testimony and timely move for a mistrial amounts to constitutionally ineffective assistance of counsel.7
“A defendant‘s right under the Confrontation Clause is violated under Bruton [v. United States, 391 U.S. 123 (88 SCt 1620, 20 LE2d 476) (1968),] 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.” Battle v. State, 301 Ga. 694, 700 (4) (804 SE2d 46) (2017). In this case, there was a joint trial of co-defendants where witness testimony introduced a statement made by co-defendant Ross, who had invoked his right against self-incrimination and did not testify, that implicated his co-defendant Fitts.
However, “[t]he admission of an out-of-court statement into evidence at a criminal trial comes within the scope of the Confrontation Clause only if the statement was testimonial. A statement is testimonial if its primary purpose was to establish evidence for use in a future prosecution.” (Citations and punctuation omitted.) Reed v. State, 307 Ga. 527, 536 (2) (c) (837 SE2d 272) (2019). Testimonial statements include statements made to a government officer, during a police investigation or interrogation, or intended to accuse someone of a crime and produce evidence for a criminal prosecution. See Billings v. State, 293 Ga. 99, 104 (4) (745 SE2d 583) (2013); see also Allen v. State, 300 Ga. 500, 504 (3) (796 SE2d 708) (2017) (co-defendant‘s statements made to a third party after crimes and before arrests were not testimonial). Here, Ross made the statement shortly after the shooting incident, before any arrests, to his father rather than to police officers investigating a crime, so it was not testimonial. Thus, any objection to this testimony based on Bruton would have been meritless. See Reed, 307 Ga. at 536 (2) (c) (failure to make meritless objection does not constitute ineffective assistance of counsel).
We reach the same conclusion, but for different reasons, about Fitts‘s claim that his counsel should have objected to this testimony as hearsay and moved for a mistrial. Pretermitting whether it would have qualified under a hearsay exception, the statement was not admitted into evidence. Instead, upon agreement of the parties, the trial court instructed the jury that it was to disregard Ross‘s father‘s answer to the question and to not consider it for any purpose. Moreover, at the hearing on Fitts‘s motion for new trial, trial counsel testified that she feared that Ross‘s father possessed more direct knowledge implicating Fitts and decided to agree to the instruction to disregard the testimony in order to move away from that line of questioning. We cannot say that counsel‘s strategic decision to refrain from objecting to a statement that was excluded and moving for a mistrial “fell outside the wide range of reasonably effective assistance, or that [Fitts] would have been granted a mistrial but for counsel‘s decision not to move for one.” (Citation and punctuation omitted.) Allen v. State, 277 Ga. 502, 503 (3) (a) (591 SE2d 784) (2004). Thus, Fitts‘s ineffective
Case No. S21A0160
3. Franklin asserts that there was insufficient evidence both as a matter of constitutional due process and under Georgia statutory law to support her convictions for felony murder, burglary, and armed robbery and that the trial court should have therefore granted her motion for directed verdict of acquittal. Upon reviewing the evidence presented at trial, we conclude that the evidence, while far from overwhelming, was sufficient to sustain her convictions and the trial court‘s denial of her motion for directed verdict.
On appeal, a criminal defendant is no longer presumed innocent, and we review whether the evidence presented at trial, when viewed in the light most favorable to the jury‘s verdicts, enabled the jury to find the defendant guilty beyond a reasonable doubt of the crimes of which she was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979); State v. Holmes, 304 Ga. 524, 526-27 (1) (820 SE2d 26) (2018). “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.” (Citation and punctuation omitted.) Smith v. State, 304 Ga. 752, 754 (822 SE2d 220) (2018). “Under this review, we must 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 discretion of the trier of fact.” (Citation and punctuation omitted). Frazier v. State, 308 Ga. 450, 452-53 (2) (a) (841 SE2d 692) (2020).
In addition, as a matter of Georgia statutory law,
to 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.
Criminal liability is imposed not only where a defendant has directly committed crimes, but also where a defendant is a party to the crimes, meaning where a defendant intentionally causes another person to commit crimes, intentionally aids in the commission of crimes, or intentionally advises, encourages, hires, counsels, or procures another to commit crimes. See
Conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the direct perpetrators of the crimes. A jury may infer a common criminal intent from the defendant‘s presence, companionship, and conduct with other perpetrators before, during, and after the crimes.
(Citations and punctuation omitted.) Coates v. State, 310 Ga. 94, 98 (849 SE2d 435) (2020).
Upon consideration of the standard of review requiring that we construe the evidence in the light favoring the jury‘s verdicts and
principles of accomplice liability, we conclude that the evidence was sufficient to show that Franklin intentionally participated in the criminal plan and was thus sufficient to sustain her convictions.8 Moreover, even if weRegardless of whether Franklin intended that Fitts would commit the murders, for the reasons outlined above the jury was thus authorized to find that Franklin intended him to commit burglary, which created a reasonably foreseeable risk that someone would be killed. See
4.
Franklin also argues that as a matter of federal constitutional due process, this Court should modify its approach to reviewing the sufficiency of the evidence under the
5.
Franklin also argues that her trial counsel rendered constitutionally ineffective assistance. During his opening statement, Franklin‘s trial counsel said, “Now, . . . this case involved apparently several individuals having duplicitous sexual relationships with two different people at the same time. My client was one of them.” Franklin argues that by calling her “duplicitous” during his opening statement, her trial counsel destroyed her credibility and set a negative tone for the evidence presented by Franklin throughout trial. Considering that trial counsel testified that his defense strategy was to show that Franklin was a credible, good person from a well-liked family with a steady and respectable job as a nurse, Franklin argues, her counsel‘s discrediting comment was a mistake that no reasonable attorney would make.
To prevail on this claim, Franklin must establish both deficient performance and prejudice under Strickland. To establish that her trial counsel performed deficiently, Franklin must prove that counsel performed his duties “in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” (Citation and punctuation omitted.) Watts v. State, 308 Ga. 455, 458 (2) (841 SE2d 686) (2020). “Trial tactics or strategy are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Id. at 460 (2). And absent evidence to the contrary, counsel‘s actions are presumed strategic. See id. at 461 (2).
We see no objectively unreasonable performance in Franklin‘s trial counsel‘s comment. Trial counsel testified that, in addition to establishing that Franklin was more respectable than her co-defendants, his strategy was to show that she was not a co-conspirator but was merely caught in a love triangle that led to the crimes. Even though describing one‘s own client as “duplicitous” might not have been the best choice of words for counsel to use before the jury, under the circumstances, reasonable counsel could have employed that description consistent with a reasonable trial strategy of acknowledging to the jury the dishonesty involved in the love triangle in which Franklin was participating. Accordingly, because Franklin cannot establish that no reasonable attorney would have made this choice under the circumstances, she has not shown that her counsel performed deficiently, and her claim of ineffective assistance fails.
6.
Finally, we have identified a merger error in Franklin‘s sentencing. We have discretion upon our own initiative to correct merger errors when they result in illegal and void judgments of conviction and sentences. See Dixon v. State, 302 Ga. 691, 696-97 (4) (808 SE2d 696) (2017).
Franklin was sentenced to serve three concurrent life sentences for both felony murder counts and armed robbery and to serve 20 years consecutively for burglary. The indictment in this case did not predicate the charges of felony murder on a specific felony; instead, each charge was predicated on “the commission of at least one of the following felony offenses, to wit: burglary, armed robbery, false imprisonment, aggravated assault, and home invasion.” The jury did not specify which felony served as the basis for either of Franklin‘s convictions for felony murder. Where ambiguity exists in the jury‘s verdicts because the jury did not specify which of two or more felonies served as the predicate felony for a guilty verdict for felony murder, this ambiguity “must be construed in the defendant‘s favor.” Thompson v. State, 263 Ga. 23, 25 (2) (426 SE2d 895) (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 821 (1) (561 SE2d 82) (2002).
Due to the ambiguity in the jury‘s verdicts, Franklin‘s conviction for armed robbery should have merged into one of her convictions for felony murder. See Robertson v. State, 268 Ga. 772, 780 (22) (493 SE2d 697) (1997) (where unclear which of armed robbery and burglary was the underlying felony for a single felony murder conviction, trial court must merge armed robbery with felony murder as the most severe in terms of potential punishment). Likewise, her conviction for burglary should have merged into her remaining conviction for felony murder. For the reasons set forth above, we affirm Franklin‘s convictions for felony murder, and we vacate her convictions for burglary and armed robbery, which should have merged with her felony murder convictions.
Judgment affirmed in Case No. S21A0159. Judgment affirmed in part and vacated in part in Case No. S21A0160. All the Justices concur, except Nahmias, P.J., who concurs in judgment only as to Division 3 of Case No. S21A0160, and Melton, C.J., and McMillian, J., who dissent in Case No. S21A0160.
S21A0159. FITTS v. THE STATE.
S21A0160. FRANKLIN v. THE STATE.
MCMILLIAN, Justice, concurring in part and dissenting in part.
In these related appeals, Donovan Fitts and Jermanique Franklin appeal their convictions for murder and other crimes in connection with the shooting deaths of Tenecia Posley and Barry Johnson. The evidence that Fitts, along with an unknown male assailant, shot the victims during the course of a burglary was substantial. Therefore, I concur fully in the Court‘s decision in Case No. S21A0159, in which we affirm Fitts‘s convictions. However, it is undisputed that Franklin was not present immediately before, during, or after the shootings, and the circumstantial evidence upon which this Court relies amounts to Franklin‘s relationship as Fitts‘s girlfriend at the time the crimes were committed and conduct common to such relationships like calling one another on the phone and helping take a vehicle for repairs. Because I disagree that there was sufficient evidence as a matter of Georgia statutory law and constitutional due process for a rational jury to find Franklin guilty of these crimes beyond a reasonable doubt, I respectfully dissent to this Court‘s judgment in Franklin‘s case.
The standard of review for determining the sufficiency of the evidence to support a conviction under the Due Process Clause of the
The inquiry is somewhat more complicated in this case because Franklin was not directly involved in the shootings and instead was prosecuted as a party to Fitts‘s crimes. Conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the direct perpetrators of the crime, and a jury may infer a common criminal intent from the defendant‘s presence, companionship, and conduct with other
In addition, 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.”
Here, “[w]hat the evidence produced by the State did not show were the essential links between [the defendant‘s] proven behavior and the crimes charged.” Clyde v. State, 276 Ga. 839, 839 (584 SE2d 253) (2003) (emphasis in original). Evidence that a co-defendant may have provided information or means to aid in the commission of a crime is insufficient without further evidence of criminal intent or knowledge of the criminal plan. See id. at 839-40 (defendant had motive and purchased the guns used by his cousins to commit murder but there was no proof he knowingly provided the guns to his cousins or that he otherwise participated in planning the crimes); Moore v. State, 255 Ga. 519, 520-21 (1) (340 SE2d 888) (1986) (insufficient evidence to support one brother‘s murder conviction even though both brothers had motive and fled together afterwards, and even where there was circumstantial evidence of the brother‘s presence at the scene of the crime); Brown v. State, 250 Ga. 862, 864-65 (1) (302 SE2d 347) (1983) (evidence of presence, association, and even approval but not intent to participate in the crimes was insufficient).
My review reveals no case where we have affirmed a conviction as a party to a crime of a defendant who was not present during or immediately before or after the crimes based on such limited circumstantial evidence as there was here.10 The State‘s evidence against Franklin amounted to a girlfriend calling a boyfriend in the same time frame as he is committing crimes, Franklin and Fitts taking the truck used by Fitts for repairs, and Franklin‘s denials that she was involved.11 Moreover, although the jury could have inferred from the evidence presented that Fitts knew from Franklin that Calvin would be out of the house on the morning of the murders and that he kept drugs and money there, the State failed to produce evidence that Franklin participated in planning the crimes or benefitted from the proceeds. Thus, as a matter of Georgia statutory law, this evidence in my opinion is not enough to exclude every reasonable hypothesis other than guilt. Also, because these basic facts proved by the State12 would not allow a rational jury to reasonably infer that Franklin had the criminal intent to support her convictions beyond a reasonable doubt, I would conclude that the evidence was insufficient as a matter of constitutional due process and that as a result, Franklin‘s convictions must be reversed, and she cannot be retried. See Jefferson v. State, 310 Ga. 725, 726 (854 SE2d 528) (2021) (citing Burks v. United States, 437 U.S. 1, 16-17 (III) (98 SCt 2141, 57 LE2d 1) (1978)).