S15A0891. HILL v. THE STATE.
S15A0891
Supreme Court of Georgia
September 14, 2015
297 Ga. 675 | 777 SE2d 460
NAHMIAS, Justice.
Sarah L. Gerwig-Moore; Childs & Noland, William H. Noland; James Bates Brannon Grover, Dianna Lee; Law Office of Tanya Miller, Sarah B. Flack,
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attоrney General, Elizabeth M. Haase, Assistant Attorney General, for appellee.
S15A0891. HILL v. THE STATE. (777 SE2d 460)
NAHMIAS, Justice.
Appellant Jarmal Hill was convicted of felony murder and numerous other crimes in connection with a home invasiоn that resulted in the shooting death of his accomplice, Calvin Lavant. On appeal, he contends only that the evidence presented at trial was insufficient to support his convictions. We аffirm.1
1. On the night of May 2-3, 2009, Terrion Key and Charles Bailey hosted a party for a group of about a dozen friends at their apartment in College Park. Around 3:00 a.m., Appellant and Lavant, who lived in the same apartment complex, entered the apartment through an open sliding glass door. Appellant was armed with a black handgun and Lavant had a silver revolver; both men were dressed in black clothes and wоre caps along with bandanas covering their noses and mouths. Appellant and Lavant ordered everyone in the apartment to lie on the floor and took their wallets, cell phones, аnd other valuables. Two former United States Marines, Sean Barner and James Adams, were attending the party but had gone outside briefly a few minutes before the home invasion; when they returned, they too were ordered at gunpoint to lie on the floor, and Appellant and Lavant took their cell phones, a wallet, and an iPod.
Appellant and Lavant ransacked the apartment for other itеms of value, and then decided to separate their male and female prisoners. The men were forced at gunpoint to go into the back bedroom and lie on the floor there, and two of the female guests were forced into the other bedroom, while the other two female guests remained in the living room. Lavant said to Appellant, “we are about to have sex with these girls, then we are going to kill them all.” Barner heard Appellant and Lavant discussing condoms and the number of bullets in their guns, and he decided that he needed to act. He had brought his book bag to the party, with his pistol in it, and, fortuitоusly, the bag was behind the bed in the bedroom where he was lying.
Barner took out his gun, stood up, and walked down the hallway into the living room with Adams following closely behind him. Barner saw Appellant standing by the front door of the apartment looking out and opened fire on Appellant, who ran out the sliding glass door. Barner then rushed back to the bedroom where Lavant was holding two of the women, shouted for everyonе to get down, and broke down the door with his shoulder. Lavant had ordered the two women to bend over the bed, pulled one of the women‘s underwear aside, and placed a condom over his penis. When Barner crashed into the room, Lavant started shooting at him. Barner fired back at Lavant, who fled through a window. Lavant was shot in the face and thigh, and one of the women in the room was hit in the arm and bоth legs, but she survived. The victims called 911.
Appellant and Lavant both fled toward Lavant‘s building in the apartment complex.
The police arrived to process the crime scene and began interviewing witnesses. Weekes called officers over to help Lavant, who was taken to the hospital but pronounced dead on arrival. The police found Appellаnt‘s cell phone near Lavant‘s body and property stolen from the victims nearby. Appellant stayed in Weekes‘s apartment until the police were gone; Weekes then saw Appellant place a black handgun in Lavant‘s apartment before leaving for his hometown of Cordele, Georgia.
Later that morning, Lavant‘s roommate, Anthony Floyd, called Appellant, who told Floyd that Lavant had gotten shot when he went to a party to rob it. Floyd also spoke to Lavant‘s older brother, Casey Lewis, who then talked to Appellant. Appellant admitted to Lewis that he went with Lavant to rob a group of people and Lavant let one of the victims “slip off... and get to them.” Appellant was arrested in Cordele two days after the home invasion.
Barner and Key identified Appellant in сourt as the surviving assailant. Other testifying victims consistently described the surviving assailant as heavy-set and dark-skinned, as Appellant was, and said he carried a black handgun.
2. Appellant‘s sole contention is that the evidence presented at trial was legally insufficient to support his convictions. We disagree.
(a) Appellant argues first that the evidence was insufficient to support his convictions under the federal due process standard. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). Specifically, he asserts that the in-court identifications of him by Barner and Key were unreliable because they were not asked to identify him in a photogrаphic lineup before trial and their testimony about the appearance of the surviving assailant differed to some extent. However, Appellant did not object to the admission of this eyewitnеss identification evidence at trial. See Neil v. Biggers, 409 U. S. 188, 196-201 (93 SCt 375, 34 LE2d 401) (1972) (discussing the due process protection against the admission of evidence deriving from suggestive identification procedures). And it is firmly established that the determination of a witness‘s credibility, including eyewitness identification, is within the exclusive province of the jury. See Reeves v. State, 288 Ga. 545, 546 (705 SE2d 159) (2011). See also Walker v. State, 295 Ga. 688, 690 (763 SE2d 704) (2014) (holding that whether and to what extent a witness‘s testimony should be believed is “a matter to be decided by thе jury that saw and heard the testimony, not by an appellate court reviewing a transcript“); Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in thе evidence.” (citation omitted)).
Viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellаnt guilty beyond a reasonable doubt of the crimes for which he was convicted, either directly or as a party to Lavant‘s criminal conduct. See Jackson v. Virginia, 443 U. S. at 319;
(b) Appellant also argues that the evidence was insufficient tо support his convictions under former
Judgment affirmed. All the Justices concur.
DECIDED SEPTEMBER 14, 2015.
Douglas P. Smith, Emily A. Harris, for appellant.
Paul L. Howard, Jr., District Attorney, Pаige Reese Whitaker, Sheila E. Gallow, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.