GLENN v. THE STATE.
S19A0683
Supreme Court of Georgia
AUGUST 19, 2019
306 Ga. 550
WARREN, Justice.
FINAL COPY
Calvin Glenn and his co-defendant Delron Glenn were convicted of malice murder, armed robbery, and possession of a firearm during the commission of a felony in connection with the shooting death of John Tanner.1 On appeal, Calvin contends that the evidence was insufficient to sustain his convictions and that the trial court erred in denying his motion in limine to exclude certain identification evidence. We disagree and affirm.
1.
We have already affirmed Delron‘s convictions. Glenn v. State, 302 Ga. 276 (806 SE2d 564) (2017). The opinion in that appeal summarized the evidence presented at Calvin and Delron‘s joint trial in the light most favorable to the verdicts:
On February 3, 2015, John Tanner, accompanied by an unknown female, went to an Affordable Inn motel. When he arrived at his room, he encountered Denard Pryor, who was there with another man nicknamed “Black.” Tanner left with Pryor to get a laptop out of Tanner‘s car, which was parked in the motel parking lot. Tanner then moved his car around the corner of the building.
Meanwhile, [Delron]‘s ex-girlfriend, Teneshia Johnson, drove [Delron] to the same Affordable Inn motel. She dropped [Delron] off at the back of the motel, where he met his brother and eventual co-defendant, Calvin Glenn, co-indictee Stanley Kitchens, and another man. When Tanner and Pryor came around the corner in Tanner‘s car, Pryor recognized the four men standing in the parking lot. Calvin and his entourage, including [Delron], had come to the motel to confront Tanner because Tanner allegedly owed Calvin some money. When Calvin saw Tanner, Calvin became angry and said he was going to “go handle this.” [Delron] then asked Calvin to give him a gun.
Tanner was out of his car, with Calvin and [Delron] following him, when the two men began “roughing up” Tanner. Tanner then managed to get back inside his car, but Calvin and [Delron] followed Tanner to his car and proceeded to steal Tanner‘s briefcase, keys to his home, and an LG MS395 cell phone. During the “roughing up” and the robbery, witnesses heard a gunshot. Calvin and [Delron] then got out of Tanner‘s car and ran away. [Delron] was spotted with a small silver gun in his hand as he ran. The men dropped a red cell phone and a key ring during their flight.
In response to a 911 call, police arrived at the Affordable Inn shortly after the shot was fired. They found a car that was still running with the door open. Tanner was found unresponsive in the driver‘s seat. Officers collected a .25 caliber cartridge
casing, a number of business cards, a video surveillance recording, and several fingerprints from the crime scene. Officers also noticed that Tanner‘s cell phone holder was empty and that there was an empty box for an LG MS395 phone in the car‘s back seat. Tanner died from a single .25 caliber gunshot wound to his abdomen; no firearm connected to that casing or bullet was ever recovered. The motel manager gave police the video surveillance recording that captured Tanner‘s last moments. The recording showed Tanner being taken to the ground by two men on the car‘s left side while two other men ransacked the car from the right side. The manager thought she recognized two of the people in the video, whom she knew by their nicknames “Fat” and “Man.” “Fat” was later determined to be Pryor, and “Man” was later determined to be Kitchens. The manager identified Kitchens because he stuck his face into the camera and because he was known to her since he had been banned from motel property. The video also showed Kitchens and three other men fleeing the parking lot via a “cut path” that led to the Hidden Woods apartments on the other side of the motel. A search of the path turned up the key ring and red cell phone. Police issued a BOLO (be on the lookout) notice describing the suspects; minutes later, Calvin was arrested near the Hidden Woods apartments. The red phone turned out to belong to Calvin.
Six days after the crime, Kitchens was arrested. He admitted to serving as a lookout at the corner of the motel building, but pinned the murder on Calvin and [Delron] despite denying that he ever saw the actual shooting. Kitchens identified the fourth male by the nickname “Red.” He told police that Calvin went by the street name “Kirkwood,” while [Delron] went by the name “Uzi.” Kitchens illuminated a motive: money. Calvin had seen Tanner at a nearby gas station earlier that day and became upset because Tanner owed him money for drugs. Calvin called his brother to meet him and confront Tanner over the money.
Other evidence implicating Calvin was not part of the summary of evidence in our previous opinion in Delron‘s appeal: When detectives showed Johnson photographs that were still frames from the video surveillance recording, she recognized Calvin and Delron, as well as Kitchens. When Kitchens viewed the surveillance video before trial, he identified himself, Calvin, Delron, and “Red” as the people next to Tanner‘s vehicle during the time of the shooting and robbery. And Kitchens told officers that Calvin gave his younger brother, Delron, a gun after pressuring and manipulating him to help “get” the man who owed Calvin some money, and that after Calvin and Delron roughed up Tanner, Calvin and Red forced Tanner to the ground.
2.
Calvin contends that the evidence was insufficient to support his convictions for malice murder, armed robbery, and possession of a firearm. Specifically, he contends that the evidence did not show that he participated in the shooting or the robbery or that he knew his brother was going to shoot or rob Tanner when Calvin gave Delron a gun.2 We disagree.
“A person who does not directly commit a crime may be convicted upon proof that the crime was committed and that person was a party to it.” Powell v. State, 291 Ga. 743, 744 (733 SE2d 294) (2012) (citation and punctuation omitted). Even assuming that Delron, not Calvin, fired the fatal shot, a person who “[i]ntentionally aids or abets in the commission of the crime; or . . . [i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime,”
Here, the evidence showed that Calvin and Delron were engaged in a common enterprise at the time of the robbery and shooting. See Powell, 291 Ga. at 745. Earlier in the day, Calvin had seen Tanner and become upset because Tanner owed him money. See Solomon v. State, 304 Ga. 846, 848 (823 SE2d 265) (2019) (defendant‘s threats to harm the victim, made earlier on the same day as the crimes, were relevant to show defendant‘s guilt as a party to the crime of malice murder). The record shows that Calvin instigated the confrontation with Tanner by calling Delron, pressuring and manipulating Delron to help, becoming angry at the motel when he saw Tanner again, and giving a gun to Delron. See id. (defendant‘s fighting with the victim while defendant‘s brother was armed with a loaded handgun, which the brother eventually used to shoot the victim, was relevant to show defendant‘s guilt as a party to the crime of malice murder). In addition, Calvin — who was identified in a motel surveillance video3 — was one of the men who “rough[ed] up” Tanner and forced him to the ground, and fled with those same men after Tanner was shot, dropping his phone along the way. See id.; McGruder, 303 Ga. at 591; Powell, 291 Ga. at 745. Moreover, Calvin and Delron “are brothers, and this Court has found that ‘where the crimes involve relatives (with close relationships), slight circumstances can support the inference that the parties colluded.‘” Solomon, 304 Ga. at 848 (citation omitted).
The jury could thus infer from the evidence admitted at trial that Calvin knew that Delron was going to use the gun that Calvin gave him to rob Tanner, which carried with it the foreseeable risk that Delron would use the gun to shoot and kill Tanner. See Kemp v. State, 303 Ga. 385, 389 (810 SE2d 515) (2018). As a result, the jury was authorized to conclude, based on Calvin‘s “conduct before, during, and after the crimes, that he shared his brother‘s criminal intent.” Solomon, 304 Ga. at 848. The evidence was therefore sufficient to authorize a rational jury to find Calvin guilty beyond a reasonable doubt as a party to the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979); Folston v. State, 294 Ga. 778, 778-779 (755 SE2d 803) (2014) (evidence was sufficient to convict defendant as a party to the crime of malice murder where it showed, among other things, that he gave a revolver to his drug-selling partner, he said “they needed to ‘handle’ a situation,” they looked for and found the victim, who had allegedly stolen drugs and money from defendant, and the partner then shot the victim).
3.
Calvin also contends that the trial court erred in denying his motion in limine to exclude statements made by lay witnesses identifying him from the motel surveillance video recording or from still photographs taken from that recording. In the motion, which Delron joined, Calvin argued that the jury would be “capable of determining for themselves whether the person in the video is [the] defendant based on their own observations.” At a pre-trial hearing, the trial court denied the motion in limine.4 As a
Calvin focuses most of his argument on the Georgia and federal precedents he says are applicable to lay witness video identifications under our new Evidence Code. We already set out the applicable law, however, when Delron raised the very same issue in his appeal: Applying
“In this case,” as in Delron‘s case, “the video recording was of such poor quality that the average juror would not be able to distinguish the faces by themselves.” Glenn, 302 Ga. at 281. And there was evidence that the witnesses who identified Calvin from the video and photographs were better suited to correctly identify him in that way than the jurors, since the witnesses had known him prior to the crimes and were familiar with his appearance. See id. As in Delron‘s appeal, therefore, we conclude that the trial court did not abuse its discretion in permitting lay witnesses to identify Calvin as one of the people in the motel surveillance video.
Judgment affirmed. All the Justices concur.
DECIDED AUGUST 19, 2019.
Murder. DeKalb Superior Court. Before Judge Hunter.
Stanley W. Schoolcraft III, for appellant.
Sherry Boston, District Attorney, Harry S. Ruth, Lenny I. Krick, Assistant District Attorneys; 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.