S21A1038. FORTSON v. THE STATE.
S21A1038
In the Supreme Court of Georgia
Decided: February 15, 2022
ELLINGTON, Justice.
A Fulton County jury found Demetruis Fortson guilty of felony murder predicated on armed robbery, hijacking a motor vehicle, and possession of a firearm during the commission of a felony, among other offenses, related to the shooting death of Nicholas Hagood.1 On
Viewed in a light most favorable to the jury‘s verdicts, the evidence presented at trial showed the following. On March 26, 2014, two men carrying handguns robbed Rayshon Smith at an apartment complex in Cobb County and took his wallet, his cell phone, and his mother‘s keys. Approximately 40 minutes later, Hagood was shot to death at a nearby apartment complex in Fulton County. The perpetrators took Hagood‘s car and cell phone. Police found items taken from Smith at the earlier robbery, his wallet and
At the joint trial of Fortson, Tavius Bates, Octavious Jordan, Jeremy Southern, and Stephen Willis, the State sought to establish Fortson‘s participation in the crimes against Hagood by circumstantial evidence. This included evidence of movement on the day of the shooting of cell phones associated with Fortson‘s co-defendants to the area of Fortson‘s home, then to the area of the armed robbery and shooting, back to the area of Fortson‘s home, and then to the area where Hagood‘s stolen phone was located; testimony showing that a participant in the crimes against Smith and Hagood wore a dreadlock or “twists” hairstyle, and testimony and photographic evidence showing that Fortson had a dreadlock or twists hairstyle while Fortson‘s co-defendants all had close-cut hair; Fortson‘s access to his mother‘s phone; the movement of that phone from the area of Fortson‘s home to the area where Hagood‘s phone was located several hours after the shooting; and calls made after the crimes by the phone stolen from Smith to persons closely associated with Fortson.
More specifically, the evidence showed that on the morning of March 26, Alexis Brewer picked up Fortson at his home in Decatur and they drove to their child‘s doctor‘s appointment. Afterwards, she dropped Fortson off at his home between 11:30 a.m. and noon.
Also on March 26, Smith and his mother drove to an apartment in Austell to visit cousins. Smith went outside, where he phoned his grandmother at 12:34 p.m. While he was on the phone, Smith noticed a car carrying three or four occupants as it slowly drove by. Shortly thereafter, two men walked up to him. Both of the men pointed guns at Smith. One of the men went through Smith‘s pockets, taking his wallet, his cell phone, and his mother‘s car keys. According to Smith, the other man, who was skinny with his hair styled in “low dreads or twists,” asked him for the code to unlock his phone.
After the robbery, Smith went inside and informed his mother, who called 911 at 12:39 p.m. In a later interview, Smith identified Southern from a photographic lineup as the man who went through his pockets.
At 1:16 p.m. on March 26, Joseph James called 911 to report that a man was being robbed at an apartment complex on Martin Luther King drive in Fulton County. During that call, James said that he had seen two cars, with one person in one car and four people in the other car.2 The apartments were located approximately two miles from the Austell area in Cobb County, where Smith was robbed. Officers responding to the scene found Hagood lying dead on the sidewalk. Police recovered a wallet, a set of keys, and a spent .380 shell casing at the scene. The wallet and keys were the ones stolen from Smith during the earlier armed robbery. The medical examiner determined that Hagood was killed by a gunshot wound to the torso.
James testified at trial that on the afternoon of March 26, he looked out his apartment window and saw that two cars had pulled up. James saw a white male, later determined to be Hagood, whom he described as seeming to be “out of place and slightly disoriented,”
The man with the dreadlocks appeared to want something from Hagood, who checked his pockets and said, “I don‘t have it.” James testified that the man with the dreadlocks began to “check” Hagood as if to determine whether he did have something, while a man holding a firearm exited the second car. When James saw the man with the gun, he told the other people in his apartment to get down, and he then heard a gunshot. After the gunshot, James looked out the window and saw the two cars driving off in the same direction. He then called 911.3
Robin Bailey, another resident of the apartment complex,
An Atlanta police detective investigated the shooting of Hagood. The detective testified at trial and offered his opinions as an expert in cell phone technology and forensics data recovery and analysis. In reviewing the records associated with Hagood‘s phone, the detective saw that a text message was sent to that phone at 1:29 p.m. on March 26, which was after James had called 911. But the message was not received by the phone until 3:10 p.m. Based on the cell tower the phone “pinged” off, the detective determined that at the time Hagood‘s phone received the text message, it was located at the Whispering Pines Apartments complex in Decatur. Co-defendant Jordan‘s aunt lived in those apartments, and Jordan and Bates were staying at a hotel less than a mile away.
After Smith‘s phone was stolen, it showed activity beginning at approximately 9:00 p.m. on March 26 and for several days thereafter. Smith‘s phone was used to call phones associated with Southern, Willis, Jordan‘s girlfriend Kiara Shy, as well as Fortson‘s mother, Fortson‘s cousin Maurice, and Brewer, among others. Most of the calls placed and received by Smith‘s phone after the robbery utilized cell towers in the area of Candler Road and Interstate 20. Similarly, two hours after Hagood was killed, his cell phone was located within what the detective described as the “Candler Road/I-20 corridor.” The detective canvassed apartment complexes in that area until he found Hagood‘s car about a quarter mile from the hotel where Jordan and Bates were staying.
After determining that Smith‘s stolen phone had been in contact with Fortson‘s mother‘s phone and Southern‘s phone, the detective interviewed Fortson‘s mother. He asked her for the names of her children, and she named three but failed to mention Fortson. She initially denied knowing Southern, but eventually acknowledged that she had known him for a long time. The
At trial, Fortson‘s mother testified that Fortson did not have a phone and used her phone sometimes, and that people got in touch with Fortson by calling her phone. Fortson‘s mother said that she received a call from Southern around noon on the day of the robbery and shooting, when she was eating breakfast at a neighbor‘s house. Southern was looking for Fortson, and she told Southern that Fortson had taken his baby to the doctor. According to Fortson‘s mother, when Fortson got home she told him that Southern had called. She also testified that she received a call around 4:00 p.m. from a person she did not know who was looking for Fortson and that she told the caller that Fortson had left with his cousin.4
In addition to the records of the victims’ phones, the detective
At 2:09 p.m., Bates‘s phone called Jordan‘s phone while in the vicinity of the apartment complex where Hagood‘s phone received the text message at 3:10 p.m. that day. At 2:11 p.m., Southern‘s phone used cell towers in that area, as did Jordan‘s phone at 2:39 p.m., and Willis‘s phone at 2:55 p.m. At 3:53 p.m., a call by Fortson‘s mother‘s phone utilized the same cell tower used by Hagood‘s phone approximately 40 minutes earlier.8 The detective determined that the call was made to a landline belonging to Fortson‘s grandmother.
The State also entered into evidence photographs of the five co-defendants which showed their physical appearance at the time the detective encountered them in 2014. Fortson, who the detective encountered in June, is the only defendant depicted with what could be called a dreadlocks hairstyle.
1. Fortson contends that the evidence was insufficient for a rational trier of fact to find him guilty of felony murder predicated
Further, 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
Fortson argues that the crimes were committed by four people, not five, because James identified five men at the scene in his 911 call, one of whom was the victim. Fortson also contends that the State relied on evidence of calls to or from his mother‘s cell phone, which did not connect him to the crimes, and that the wholly circumstantial evidence was insufficient to establish he was a party to the crimes. The State failed, Fortson asserts, to carry its burden of disproving any reasonable hypothesis other than his guilt.
James testified at trial that there were “four guys in the one car and it was two people in the other car,” and when confronted with the difference between that statement and his 911 call, responded, “I can‘t remember.” It was for the jury to resolve any conflicts in the evidence. See Bonner v. State, 311 Ga. 466, 468 (2) (858 SE2d 496) (2021). They were not bound to conclude that only four people were involved in the crimes against Hagood.
Notwithstanding Fortson‘s argument regarding the calls made by Fortson‘s mother‘s phone, the circumstantial evidence connecting Fortson to the crimes is not limited to these calls, as discussed below. The calls are also relevant to whether Fortson participated in the crimes. The first two calls show that Southern was attempting to contact Fortson, and the detective testified that Southern‘s phone was in the vicinity of and moving towards Fortson‘s home when the second call was made at 12:05 p.m. Brewer‘s testimony places Fortson at his home before the second call. The 3:53 p.m. call shows that Fortson‘s mother‘s phone was near the location of Hagood‘s phone when Hagood‘s phone received a text at 3:10 p.m. This
Turning to evidence in addition to the calls involving Fortson‘s mother‘s phone, testimony showed that Fortson was friends with Bates, Jordan, and Southern. The phone records of Fortson‘s co-defendants, as more particularly discussed above, show movement from Stone Mountain in the morning, to near Fortson‘s home around noon, to the scenes of Smith‘s robbery and Hagood‘s shooting in the early afternoon, back to the area of Fortson‘s home, and then to the area where Hagood‘s stolen phone was located at 3:10 p.m. A trier of fact could reasonably conclude that the evidence concerning Fortson‘s co-defendant‘s phones was consistent with Fortson‘s involvement in the crimes.
A trier of fact could also conclude that the men who robbed Smith participated in the crimes against Hagood about 40 minutes
After Smith‘s phone was stolen, it was used to call the phones
We acknowledge that this is a close case based on circumstantial evidence, and that the testimony of some witnesses, if believed by the jury, was exculpatory. For example, Fortson‘s mother maintained that she was not at home, but was at a neighbor‘s house when she received the 12:05 p.m. call from Southern, and that she told Fortson about that call some unspecified time later. But in order for Fortson to have joined Southern and driven with him to Austell, where Smith was robbed, Fortson had to
The State did not establish that Fortson personally shot Hagood, took Hagood‘s cellphone through the use of a handgun, or took Hagood‘s car by force and intimidation while in possession of a handgun. However, “[e]very person concerned in the commission of a crime is a party thereto and may be . . . convicted of commission of the crime.”
(citation and punctuation omitted). The jury could reasonably conclude that Fortson was present at the scene and went through Hagood‘s pockets, participated in the armed robbery of Smith shortly before, and traveled to and from the scene with his co-defendants, and so shared in the criminal intent. See Eckman, 274 Ga. at 65-66 (1) (evidence showing that the 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 companions’ commission of crimes in the previous 24 hours). A rational trier of fact could have found beyond a reasonable doubt that Fortson was a party to the crimes of which he was convicted. See Jackson, 443 U.S. at 307 (III).
2. Fortson contends that the trial court erred when it failed to grant his motion for new trial while sitting as the “thirteenth juror.”
In its order on Fortson‘s motion for new trial, the trial court stated that, having reviewed “the entire record,” it “weighed the evidence and made determinations of credibility of witnesses as is its obligation under Georgia law in acting as the ‘thirteenth juror.‘” The trial court then found that “the jury‘s verdict is not contrary to the evidence or decidedly and strongly against the weight of the evidence, nor do the principles of justice and equity demand a new trial,” and so denied the motion for new trial on the general grounds. The trial court having exercised its discretion as the “thirteenth juror,”13 and this Court having concluded that the evidence was
3. Lastly, Fortson contends that the trial court committed reversible error when it denied his request for a directed verdict of acquittal. “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.” Hester v. State, 282 Ga. 239, 240 (2) (647 SE2d 60) (2007) (citation omitted). We concluded in Division 1, above, that the evidence was sufficient to support Fortson‘s convictions. The trial court did not err in denying Fortson‘s motion for a directed verdict.
Judgment affirmed. All the Justices concur except Colvin, J., who dissents and Peterson, J., not participating.
In affirming Fortson‘s convictions based upon circumstantial evidence, the majority opinion relies upon the deference we give to the jury‘s assessment of the evidence. See Worthen v. State, 304 Ga. 862, 867 (823 SE2d 291) (2019) (“Jurors are normally entitled to make reasonable inferences from circumstantial evidence regarding all sorts of facts, including the facts necessary to find defendants guilty beyond a reasonable doubt of capital crimes.“). However, even giving the jury‘s credibility determinations proper deference, the State is still required to prove that Fortson was a party to the crimes beyond a reasonable doubt. Because the circumstantial evidence in this case connecting Fortson to the crimes is insufficient to satisfy the beyond-a-reasonable-doubt standard and does not exclude every reasonable hypothesis save that of Fortson‘s guilt, I cannot agree with the majority‘s conclusion. Accordingly, I respectfully dissent.
The crux of this case is whether the limited circumstantial evidence presented by the State was sufficient to sustain Fortson‘s
Here, the circumstantial evidence that would allow a jury to infer that Fortson shared a common criminal intent with the known
Contrary to the majority‘s conclusion, the cell-phone evidence does not provide sufficient circumstantial evidence that Fortson was a party to any of the crimes charged. In my mind, the strongest circumstantial evidence introduced at trial was the cell-phone records from Smith‘s stolen phone. The State heavily relied upon these records in its attempt to establish Fortson‘s alleged motive for participating in the crimes – namely, that he was broke and needed money and a cell phone. The cell phone evidence, however, does not support the State‘s theory. The record shows that the first calls placed on Smith‘s stolen phone were to Kiara Shy‘s phone – Jordan‘s girlfriend and Bates‘s cousin.14 Prior to March 26, Shy‘s and
The evidence also shows that Jordan‘s friend, Dionte Wooten, had the phone number for Smith‘s stolen phone saved in his contacts as “Tay Tay,” which is Jordan‘s nickname. This corroborates the portion of Jordan‘s custodial statement wherein he admitted to having Smith‘s phone. Finally, the record shows that all of the phone calls to and from Smith‘s stolen phone pinged off towers in
Regarding the evidence that Smith‘s stolen phone called Brewer, the phone records show that Brewer was contacted once from Smith‘s stolen phone, and that phone call took place on March 28 at 1:14 a.m., 36 hours after Smith‘s phone was stolen. The call also pinged a tower in the I-20/Candler Road corridor, which was not in the area where Fortson lived with his mother. Meanwhile, the
I am not swayed that any of the remaining evidence could prove beyond a reasonable doubt that Fortson was a party to Hagood‘s murder or that the State excluded Fortson‘s reasonable alternative hypothesis that he was not a participant in the crimes. The majority relies on the potential location of Southern‘s cell phone at the time of the 12:05 call and the State‘s 29-minute timeline as sufficient to establish Fortson‘s involvement. However, Smith‘s own testimony,
Smith testified that there were three to four men involved in his armed robbery. The State corroborated this testimony with other evidence. Southern, Jordan, and Willis were placed at Smith‘s armed robbery by their phone records; Smith positively identified Southern as one of his assailants; Jordan and Bates admitted to being at both Smith‘s armed robbery and Hagood‘s murder; and, the jury heard evidence that Bates pled guilty to Smith‘s armed robbery in Cobb County and that Fortson was never charged. The State presented no evidence whatsoever that more than four men participated in Smith‘s armed robbery or that a second car was involved. Moreover, while the evidence shows that a second car was present at the scene of Hagood‘s murder, that car belonged to, and was driven by, Hagood.
The State‘s entire timeline concerning Fortson‘s alleged involvement in Hagood‘s murder revolved around Southern picking
The majority also relies on the 3:53 p.m. call “by Fortson‘s mother‘s phone [that] utilized the same cell tower used by Hagood‘s phone approximately 40 minutes earlier.” Maj. Op. at 11. The record shows that the call was to Ms. Fortson‘s grandmother who lived in Ousley Court, a residential area less than one mile from the area where Haygood‘s car and phone were located. The State
Based upon these considerations, I must conclude that the evidence as a whole was insufficient as a matter of law to support