Case Information
*1 In the Supreme Court of Georgia
Decided: May 31, 2023 S23A0111. HEAD v. THE STATE.
L A G RUA , Justice.
Appellant Dennaryl Head was convicted of felony murder and other crimes in connection with the shooting death of Dwight Smith. [1] On appeal, Head contends that (1) the evidence presented [1] Smith was shot on November 24, 2006, and died on December 6. On March 30, 2007, a Fulton County grand jury indicted Head, Miche Hunt, Michael Smith, and Christopher Sutton for malice murder (Count 1), felony murder (Counts 2-4), two counts of aggravated assault with a deadly weapon (Counts 5-6), attempted armed robbery (Count 11), and two counts of possession of a firearm during the commission of a felony (Counts 12-13). Head, Hunt, Michael, and Sutton were also each indicted for conspiracy to commit the crime of armed robbery (Counts 7-10), and Head was separately indicted for possession of a firearm by a convicted felon (Count 14).
Prior to trial, one of the counts of possession of a firearm during the commission of a felony (Count 13) was dismissed. In November 2008, Head, Hunt, and Sutton were jointly tried, but Head’s felon-in-possession count (Count 14) was bifurcated. On November 14, 2008, a jury acquitted Head of malice murder, but found him guilty on all other counts. After waiving his right to a jury trial on the felon-in-possession count, Head was acquitted at a bench trial on November 17.
The trial court merged two of the counts of felony murder (Counts 3-4),
one count of aggravated assault (Count 5), conspiracy to commit armed robbery
*2
at trial was legally insufficient to sustain the verdict against him
under former OCGA § 24-4-8, and (2) the trial court abused its
discretion under former OCGA § 24-3-1 by admitting hearsay
testimony from a police detective. We conclude that the evidence was
sufficient under former OCGA § 24-4-8 because the testimony of
Head’s accomplice was sufficiently corroborated. And, pretermitting
whether the trial court erred in admitting the challenged testimony,
(Count 7), and attempted armed robbery (Count 11) into one count of felony
murder (Count 2). Although the trial court purported to merge Counts 3 and 4
into Count 2, they were actually vacated by operation of law. See
Malcolm v.
State
,
On November 24, 2008, Head filed a motion for new trial, which was amended on October 26, 2011, and again on October 30. The first hearing on the motion for a new trial occurred on August 1, 2012. Head’s trial counsel requested “at least twenty-four hours” to file a post-hearing brief. The post- hearing brief was never filed. The State filed a motion to dismiss the pending motion for new trial on December 15, 2014, stating that the motion had “remained pending without any activity” since it was filed. Head, acting pro se, responded to the State’s motion and renewed his motion for a new trial on January 20, 2015. Trial counsel voluntarily surrendered his license to practice law in Georgia on October 5, 2015. On December 16, 2016, the State then filed a motion seeking a status conference or scheduling order concerning Head’s motion for a new trial. On July 27, 2020, Head’s appellate counsel filed an entry of appearance and amended the motion for new trial a fourth time on October 16. Following the second hearing on Head’s motion for a new trial, the trial court denied the motion on April 13, 2022. Head filed a timely notice of appeal and the case was docketed to this Court’s term beginning in December 2022 and submitted for a decision on the briefs.
we conclude that any error was harmless.
1. The evidence presented at trial showed that, on the evening of November 24, 2006, Head called Michael Smith, [2] Head’s co- indictee, to ask if he “still need[ed] some money.” Michael responded that he did, and Head instructed him to come by Head’s house. According to Michael, he was friends with Head, spoke to Head almost every day, and at some point had mentioned to Head that he needed money to pay off a traffic ticket and help support his father.
That evening, multiple people met at Head’s home, whom Michael identified as: Head, Miche Hunt (Head’s girlfriend), Christopher Sutton, Jamilah Jarboe (Sutton’s girlfriend), and a man named “Sin.” [3] Head devised a plan for robbing “the tattoo guy”— Smith—and assigned roles to everyone. Michael and Sutton were supposed to be the “two guys doing the robbing,” and Hunt was “supposed to play the role of the girl getting the tattoo.” Sin and Jarboe sat and listened but did not participate in the conversation. [2] Michael Smith bears no relation to the victim.
[3] Sin (also referred to as Yassin) was never identified and was not located by law enforcement.
Head told everyone that the robbery would take place at the “tattoo guy’s house” and that it would be “easy, simple, in and out.” Head wanted Michael and Sutton to carry guns during the robbery. Michael told Head that he did not have a gun, and Head provided him with a .45-caliber handgun that was “nickel-plated at the top with a black bottom.”
After spending about an hour at Head’s house, Michael, Hunt, Sutton, Jarboe, and Sin all left to drive to Smith’s house located on Godfrey Drive in Atlanta, with Jarboe driving the group. Head did not go with the group because he had to stay behind to watch the two children he shared with Hunt. The group arrived at Smith’s house around 7:00 or 8:00 p.m. As they exited the car, Michael saw Sutton pull a chrome gun out from underneath his seat. Sin and Jarboe waited outside with the car while Michael, Hunt, and Sutton walked up to the home, and knocked on the door. Smith’s younger cousin, later identified as Khiry Clemmons, answered the door. Hunt sat down with Smith and began discussing ideas and pricing for a tattoo. Hunt then got up and went to the bathroom, and Sutton *5 pulled his gun on Smith. Michael pulled out his gun, as well, and ordered Clemmons to the ground. Clemmons complied, but Smith jumped for Sutton’s gun. Smith and Sutton tussled over the gun, and the gun went off. Michael saw Smith hit the ground, assumed he had been shot, and then ran out the front door, followed by Sutton and Hunt. The three of them got into the car with Jarboe and Sin, and the group headed back to Head’s home. After the group returned to Head’s home and told Head what occurred, Head told Hunt that “he needed to have his number changed on his phone,” and Hunt responded that she had already planned on changing it. Shortly after this discussion, Michael returned the .45-caliber gun to Head and walked home. Michael was later identified by law enforcement through interviews with other witnesses and ultimately pled guilty to his participation in the shooting.
After the shooting occurred, Clemmons called 911, and Atlanta Police Department (“APD”) officers responded to Smith’s house. An APD homicide detective arrived on the scene at approximately 8:37 p.m. and took over the investigation. The detective interviewed *6 Clemmons at the scene, and based on that interview and Smith’s phone records, he estimated that the shooting occurred between 7:25 p.m. and 7:54 p.m. Smith was transported to Grady Hospital and died from complications of his injury 12 days later.
The detective took possession of Smith’s cell phone after the shooting and was able to confirm that Smith’s phone number ended in 3137. Cell phone records for Smith’s phone number show multiple phone calls between Smith’s phone and a number ending in 3159 between 7:24 p.m. on November 22, 2006, and 4:36 p.m. on November 23. On the day of the shooting, November 24, there were multiple calls between Smith’s phone and the 3159 number between 11:00 a.m. and 6:42 p.m. On November 22, 23, and 24, the phone records for the phone number ending in 3159 also showed numerous calls to a number ending in 5023. Testimony from phone record custodians showed that the number ending in 5023 was a Sprint account registered to Jamilah Jarboe and the number ending in 3159 was a Metro PCS account registered to Tony Brown. The detective testified that it was not uncommon with Metro PCS *7 accounts for the person using the phone number to have a different name than the one listed on the account. The detective pulled the phone records for the 3159 number, identified one number [4] that had been called multiple times per day from the 3159 number, and called that number in an attempt to identify the user of the 3159 number. Based on that call, the detective determined that the 3159 number was being used by Head. [5] Phone records showed that, at 8:04 p.m., shortly after the shooting, the 3159 number dialed 611. The Metro PCS representative testified that (1) one of the ways to change a cell phone number on a Metro PCS account was to call 611 and (2) the 3159 phone number was changed, but he could not say what time the number was changed.
The detective put together two photo lineups, one that included a photo of Head and another that included a photo of Hunt. The [4] The detective did not testify to which number he was referring, and it is not clear from the record what number he called or who picked up that call.
[5] The trial court admitted this testimony over objections from Head. Head contends that the trial court erred in allowing this testimony to stand, the merits of which we discuss in Division 3.
detective showed these lineups to Clemmons, who identified Head and Hunt. [6] Using this identification, the detective obtained arrest warrants for Head and Hunt.
When Head was arrested on January 2, 2007, a .45-caliber “nickel-plated” gun with a “black bottom” fell from his waistband and was retrieved by law enforcement. The gun was introduced at trial and identified by Michael as the gun Head gave him to commit the robbery against Smith. The murder weapon was never recovered. After arresting Head, the detective attempted to verify whether Head was using the 3159 cell phone number and asked Head what phone number he was using. The detective testified that Head “danced around the question during his interview” and “claimed he did not remember what [his cell phone number] was,” but Head ultimately told the detective that the 3159 number had been changed and that he was using the new number. Phone records [6] Clemmons later recanted his identification of Head when the detective told Clemmons that Clemmons was mistaken that he saw Head in the house the night of the shooting.
indicated that the 3159 number was changed to a number ending in 4019. [7] Head did not admit to using the 3159 number and stated that Hunt had changed the cell phone number. Head denied being at any meeting where there was a discussion about robbing Smith, “the tattoo guy,” and when the detective asked if Head went to Smith’s home, Head responded that he did not and instead “stayed at the residence.”
After Hunt was arrested, she told the detective that she had used the 3159 number and admitted that she changed the phone number. The detective testified that, during her interview, Hunt identified Michael and told the detective how he could contact Michael. Hunt also told the detective during her interview that she was at a residence with a group of people to plan the robbery of Smith and that she and four other people from the group then went to Smith’s home.
[7] The Metro PCS records for the Tony Brown account show that on November 24, the 3159 line was disconnected and a number ending in 4019 was activated to replace it. The specific time the number was changed is not provided in the record.
Jarboe testified that she was Sutton’s girlfriend and had provided a written statement to detectives a couple of months after the shooting. Jarboe’s statement about the events on the day of the shooting provided:
Me and [Sutton] went over to his friend[’]s house named Sin . . . . We got there and in the house was Sin and three other people now they was chill and talking then Head started telling [Sutton] that his girl need a ride ova to this tat[t]oo guy house to get one on her back[. . . .] Sin [and] I guess Mike rode with us[.] I drove there[.] [T]hen everyone got out but me [and] Sin[.] [T]hey was in the house for a few[,] came out talking loud[,] tell[ing] me to drive off.
Despite being granted immunity, Jarboe was treated as a hostile witness for the State and testified that she did not know anyone named Head and only wrote that name in her statement because the detective told her to do so. She also denied knowing anyone named Miche Hunt or Michael Smith, but stated that she did know someone named “Yassin” or “Sin.” She testified that she just wanted to “make [her] statement make sense to [the detective]” so she could “go home.”
Jarboe testified that she drove a group of people to a tattoo *11 parlor so that “Sin’s girlfriend” could get a tattoo. She testified that she was the only person using the 5023 number and that she did not know why there was a call from her number to Smith’s phone at approximately 7:22 p.m. the evening of the shooting.
The morning after the shooting, Belinda Chaney, who identified herself as Smith’s girlfriend, called the detective. Chaney testified that she would periodically call Smith’s clients to confirm their tattoo appointments, especially when those clients did not answer Smith’s calls. Chaney testified that, on November 22, she called a number to follow up with a woman who was supposed to get a tattoo later that day. Although Chaney could not remember the specific phone number, it was determined that she called a number ending in 3159. [8] When Chaney called the number, the woman who answered told Chaney that she was still coming to get her tattoo that day, but that she was waiting on childcare and needed to get a ride. Chaney testified that this woman was supposed to come and [8] The detective testified that he pulled the phone number from Chaney’s phone when she came to the homicide office for an interview.
get her tattoo on November 22, but never showed up for her appointment. Clemmons testified that this was the same woman who came to get a tattoo on the night of the shooting because Clemmons was with Smith when Smith received the calls from the woman, and he overheard parts of their conversation. [9]
2. Head contends that the evidence adduced at trial was legally insufficient to sustain the verdict against him under former OCGA § 24-4-8, the statute in effect at the time of Head’s trial. [10] Former OCGA § 24-4-8 provided:
The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and [9] Clemmons’s uncontroverted testimony at trial was that the woman who showed up at Smith’s home the night of the shooting was the same woman who missed her appointment earlier in the week. No further information about Clemmons’s knowledge of the woman was provided at trial, and none of the parties objected to his testimony.
[10] This case was tried under the old Evidence Code, see Ga. L. 2011, p. 99, § 101, and for that reason, we cite former OCGA § 24-4-8. We note, however, that the provisions of former OCGA § 24-4-8 are still present in the current Evidence Code and can now be found at OCGA § 24-14-8. Although this case was tried under former OCGA § 24-4-8, because the language of this former code section still exists under the current Evidence Code in OCGA § 24-14-8, cases decided under the current code section may apply to cases tried under former OCGA § 24-14-8. Cf. Styles , 309 Ga. at 466 (1) n.4 (noting that the inverse is true and cases decided under former OCGA § 24-4-8 may be applied to cases applying the current evidence code OCGA § 24-14-8).
felony cases where the only witness is an accomplice, the
testimony of a single witness is not sufficient
.
Nevertheless, corroborating circumstances may dispense
with the necessity for the testimony of a second witness[.]
(Emphasis supplied.) Sufficient corroborating evidence may be
circumstantial, slight, and need not be of itself sufficient to warrant
a conviction of the crime charged. See
Styles v. State
,
For the reasons explained below, we conclude that the evidence corroborating Michael’s testimony about Head’s participation in the crime was sufficient and that “the evidence was also sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that [Head] was guilty of the crimes of which he was convicted.” Crawford v. State , 294 Ga. 898, 902 (1) (757 SE2d 102) (2014) *15 (holding that evidence of phone records was sufficient to corroborate the accomplice’s testimony despite the fact that the records “neither reveal the content of the [phone] conversations nor even confirm that [the defendant] himself, as opposed to some other person using his phone, was a party to the calls”). [11]
(a) Michael’s Testimony
Michael testified that, the evening of the shooting, he, Head,
Hunt, Sutton, Jarboe, and Sin were all discussing robbing Smith and
that Head was “leading the discussion” and assigning “roles,”
specifically, that Hunt would pretend to be interested in getting a
tattoo and that Sutton and Michael would “do[] the robbing.”
Michael stated that Head wanted him to carry a gun, and, when
Michael told Head he didn’t have a gun, Head provided him a .45-
caliber handgun that was “nickel-plated at the top with a black
[11]
Although Head does not set forth a separate enumeration contending
that the evidence was insufficient as a matter of federal constitutional law, we
note that, as a matter of federal due process, accomplice testimony does not
need to be corroborated, so Michael’s testimony alone was sufficient to support
Head’s convictions. See
State v. Thomas
,
bottom.” Michael further testified that Jarboe drove him, Hunt, Sutton, and Sin to Smith’s home to execute the robbery, but that Jarboe and Sin waited outside. After the shooting occurred, Michael testified that the group ran out of Smith’s home, jumped in the car, and yelled at Jarboe to drive away quickly. Once they returned to Head’s home, Michael testified that Head was “going on and on about [how] he needed to have his number changed on his phone,” and Hunt responded that it had already occurred to her that the phone number needed to be changed.
(b) Corroborating Evidence
Although the majority of the evidence implicating Head came
from his accomplice, Michael, multiple pieces of evidence
corroborated Michael’s testimony and authorized the jury to
conclude that Head was sufficiently involved in Smith’s shooting to
convict him of the crimes with which he was charged, at least as a
party to the crime. OCGA § 16-2-20 (b) (3) and (4) (a person is a party
to a crime if he “aids or abets in the commission of the crime” or
intentionally “advises, encourages, hires, counsels, or procures
*17
another to commit the crime”). See also
Willis v. State
,
Jarboe’s written statement to police describing the events that
occurred the day of the shooting corroborates Michael’s testimony
that Head was at a meeting where a group was planning to rob
Smith. Jarboe stated that she and Sutton went to a residence where
there was “Sin and three other people.” She then identified Head
and Head’s girlfriend (Hunt) in her statement. Therefore, the jury
*18
could have logically concluded that, once Jarboe and Sutton arrived
at the residence, there were six people present, which corroborates
Michael’s testimony identifying five people at the meeting, in
addition to himself. The jury could also have concluded from this
statement that, according to Jarboe, she, Sutton, Head, Hunt, and
Sin were all at a residence on the day of the shooting. Jarboe further
stated that Head told Sutton that he (Head) needed someone to drive
his girlfriend (Hunt) to “this tat[t]oo guy house” to get a tattoo and
that Jarboe and Sutton then agreed to take Hunt to get a tattoo.
Thus, the jury could, at the very least, “infer [Head’s] guilt” because
these statements corroborated Michael’s testimony about Head
assigning Hunt the “role” of the girl getting the tattoo.
Doyle
, 307
Ga. at 611. Jarboe stated that Sin, Hunt, and “Mike,” rode with her
and Sutton to take Hunt to get a tattoo, from which the jury could
infer that Jarboe was identifying Michael and corroborating his
testimony that Jarboe drove the group to execute the robbery.
Jarboe further stated that she and Sin waited outside and
“[everyone] was in the [tattoo guy’s] house for a few” before they
*19
“came out talking loud tell[ing] me to drive off,” which corroborates
Michael’s version of events immediately after the shooting occurred.
Although she denied the veracity of her written statement to police
on the stand, the jury is tasked with resolving evidentiary conflicts
and assessing witness credibility and was at liberty to believe
Jarboe’s written statement to police over her testimony on the stand.
See
Munn v. State
,
The detective testified that, during her interview, Hunt said
that she was present at a residence “with some other parties” where
the group discussed a plan to rob Smith, which supports Michael’s
testimony about the meeting and confirms Hunt’s presence at that
meeting.
[12]
She then stated that, after the meeting, “five people
[12]
Because Hunt, Head, and Sutton were all tried together, much of the
detective’s testimony relaying statements made by Hunt or Head were strictly
limited so as to not use the testimony of one defendant to inculpate the other.
See
Simpkins v. State
,
Therefore, the statements of Jarboe and Hunt corroborate
Michael’s testimony that Head was present at a meeting to plan the
robbery of Smith (where six people were present), that everyone
except Head (five people) went to Smith’s house to execute the
“the admission of a ‘powerfully incriminating’ statement by a non-testifying
codefendant that
inculpates a defendant
in the charged crimes
unconstitutionally deprives the defendant of his or her Sixth Amendment right
to cross-examine witnesses”) (citing
Bruton v. United States
,
robbery, and that when they returned to the initial meeting place,
Head and Hunt decided that they needed to change the 3519 number
on the phone. Head’s own statements about using the phone number
after it was changed and that Hunt changed the number further
corroborate this testimony. And, assuming that Hunt and Jarboe
were also accomplices, the “testimony of one accomplice may
corroborate another.”
Huff
,
Moreover, despite Head’s ability to avoid explicitly admitting
his involvement in Smith’s shooting, he did tell the detective that he
did not go to Smith’s home and, instead, “stayed at the residence,”
from which the jury could disbelieve Head’s version of the facts—as
it pertains to the purpose of the meeting at the house that occurred
before the shooting—and conclude that he was, in fact, at a residence
planning the robbery of Smith before the rest of the group left to
execute said robbery. See
Arnold
,
Although Head contends (and we address in Division 3) that the detective’s testimony identifying Head as the person using the 3159 phone number was improperly admitted, “this Court has explained that in considering the sufficiency of an accomplice’s testimony, we must consider all of the evidence submitted by the *23 trial court, regardless of whether that evidence was admitted erroneously.” Thomas , 311 Ga. at 420 (4). Therefore, the evidence showed that Head was at least, according to the detective, linked to the phone that made calls to Smith in the days leading up to the shooting. And, even without considering the contested phone number testimony, Head admitted (1) to using the phone after the shooting occurred and the number was changed; (2) that he knew his girlfriend had the number changed on that phone; and (3) that he continued to use that phone after it was changed.
Finally, when Head was arrested, a .45-caliber gun matching
the description Michael provided fell from his waistband and was
introduced as an exhibit at trial. Although taken individually, each
of the pieces of evidence do not corroborate every detail of Michael’s
testimony, taken together, the evidence sufficiently supports
Michael’s testimony because “only slight evidence of corroboration is
required.”
Barber v. State
, 314 Ga. 759, 763 (1) (879 SE2d 428)
(2022). Corroborating evidence “need not be sufficient in and of itself
to warrant a conviction, so long as it is independent of the
*24
accomplice’s testimony and directly connects the defendant to the
crime or leads to the inference of guilt.” Id. at 763-764 (1). And, it is
“within the exclusive province of the jury” to determine whether
there was an inference of guilt based on the evidence submitted to
it.
Munn
, 313 Ga. at 720 (1) n.11. Therefore, the evidence is
sufficient. See
Barber
,
3. Head contends that the trial court abused its discretion under former OCGA § 24-3-1 [13] by admitting hearsay testimony from the detective about Head’s use of the 3519 number that connected Head with the charged offenses. This claim fails for the reasons that follow.
A trial court’s error in allowing hearsay testimony is harmless if it is highly probable that the alleged error did not contribute to the verdict. See Lyons v. State , 309 Ga. 15 (22) (843 SE2d 825) (2020) (“The test for determining . . . harmless error is whether it is highly probable that the error did not contribute to the verdict.”). [13] Former OCGA § 24-3-1 defined hearsay as evidence that “does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.”
See also
Williams v. State
, 313 Ga. 443, 448 (1) (870 SE2d 397)
(2022) (noting that evidentiary errors are “harmless if it is highly
probable that the error did not contribute to the verdict”). Assuming,
without deciding, that (1) the detective’s statement that Head was
using the 3159 number was inadmissible hearsay, and (2) Head
properly preserved this objection for appellate review, we conclude
that any error by the trial court in allowing the evidence was
harmless.
[14]
See
Harris v. State
,
determining whether the error was harmless, we review the record
de novo and we weigh the evidence as we would expect reasonable
jurors to have done so as opposed to viewing it all in the light most
favorable to the jury’s verdict.”
Middlebrooks v. State
,
At trial, the detective testified that he reviewed the phone records for the 3159 number; noticed a number that was called frequently; called that number; and by calling that number, he was *27 able to determine that the 3159 number belonged to Head.
Head argues that the State placed too much weight on the detective’s testimony about the 3159 number and that the State failed to present any other evidence independent of Michael’s testimony to support Head’s alleged involvement. We disagree. The detective’s testimony that the 3159 “belonged to Head” did very little to implicate Head or corroborate Michael’s testimony in light of the other evidence presented. Jarboe’s phone number—not the 3159 number—was the one used to call Smith’s phone at approximately 7:22 p.m. on the night of the shooting. Clemmons’s undisputed testimony at trial was that the woman who called to make the tattoo appointment days earlier—Hunt—was the same woman who showed up for a tattoo appointment the night of the shooting. And, a woman’s voice answered when Chaney called the 3159 number to confirm a tattoo appointment with that same client a few days before the shooting.
Independent of both Michael’s testimony and the detective’s
testimony associating the 3159 number with Head, the evidence
*28
discussed in Division 2 provides the jury with a sufficient basis to
determine Head’s guilt. Further, the alleged hearsay testimony
connecting Head with the 3159 phone number that called Smith to
make the tattoo appointment is essentially cumulative of the
testimony provided by Hunt through the detective at trial. Because
Head admitted that he used the 3159 number after it was changed,
any of the detective’s hearsay testimony reinforcing the statements
made by Hunt and Head was cumulative. And, “weighing [this]
evidence as we would expect reasonable jurors to have done,” we
thus conclude that any error on the part of the trial court in
admitting this hearsay testimony was harmless.
Pritchett
, 314 Ga.
at 778-779 (2) (c). See also
Davenport v. State
,
Judgment affirmed. All Justices concur, except Warren, J., who concurs in judgment only in Division 2.