Reese v. StateReese v. State
After a jury trial in May 2018, Larry Reese was convicted of the malice murder of Claynesia Ringer, possession of a firearm during the commission of a felony based on shooting Ringer, and possession of marijuana with intent to distribute.1 Reese raises three claims of
1. (a) Shortly before 3:00 a.m. on August 19, 2015, Ringer was shot and killed inside a red Nissan Versa parked on the street in front of Reese‘s house. Ringer and Reese knew each other and lived down the street from each other. Evidence showed that Ringer borrowed the Versa from a friend and drove it to Reese‘s house after her phone sent text messages to Reese‘s phone asking to purchase marijuana.
The State‘s theory of the case was that Reese was a paranoid drug dealer who shot Ringer after she approached his house in the early morning hours in the Versa—a car he did not recognize. Reese‘s theory of the case, by contrast, was that Reese shot at the car in self-defense. That is so, Reese argued, because Ringer, along
(b) The evidence presented at trial showed the following. At 2:49 a.m., Reese‘s mother (with whom he lived), called 911 to report a shooting in front of her house. Police arrived at the scene within minutes and found Ringer dead in the driver‘s seat of a Nissan Versa in front of Reese‘s house. The car was still running, the driver door was open, and the other doors were closed and locked. The car was parked directly in front of Reese‘s house facing an SUV registered in Reese‘s name. There were multiple bullet holes and defects around the car‘s driver door, including on the door, the doorframe, and the driver window. Helen Weathers, a forensics supervisor with the Fulton County Police Department, testified that the hole in the window was consistent with a bullet traveling through the window
Among other things, fifteen one-dollar bills2 and Ringer‘s cell phone were found inside the car. No gun was found inside the car or at the scene of the shooting. A pack of cigarettes with Reese‘s fingerprints on it and a few cigarette butts were found near Reese‘s SUV. In Reese‘s driveway, officers found a single key. And in Reese‘s front yard, officers found a key ring attached to a bright yellow tag, which contained a key to Reese‘s SUV and to his house.
Five .45-caliber shell casings were found in Reese‘s yard. Officers found two shell casings close to the key ring; the other three were found days later when officers returned to Reese‘s yard with a metal detector. In addition, officers found two .45-caliber metal jacket bullets, a metal jacket, and bullet fragments in and around the Versa. No bullet defects were discovered in cars parked in
Based on the presence of surveillance cameras that might have recorded the shooting and on Reese‘s keys that officers found in his yard near the .45-caliber shell casings, officers obtained two warrants to search Reese‘s house, one for recorded surveillance videos and another for firearms. The search yielded, among other things, a DVR system with recordings from the surveillance cameras affixed to the outside of Reese‘s house, 14.7 ounces of marijuana, a small scale, and cash. Reese‘s fingerprint was found on a bag of marijuana in the house.
A later search of the contents of Ringer‘s cell phone revealed communications with three phone numbers around the time of the crimes. One phone number belonged to Reese; another belonged to Gerald Bell, who lived across the street from Reese and down the street from Ringer; and another ended in -8146, which Dwoskin
Ringer‘s phone also showed various text messages and phone calls with Reese‘s phone from around 12:30 a.m. until around 1:30 a.m. on the night of the shooting; the text messages were about Ringer having sex with one of Reese‘s friends and Ringer arranging for someone to have sex with Reese, each in exchange for money. The text messages showed that neither arrangement worked out, and a message was sent from Reese‘s phone saying the situation sounded like a “set up” anyway.
Ringer‘s phone received a text message from the -8146 phone number at 1:24 a.m. saying, “I‘m finna pull up.” Ringer‘s phone sent a text message to the -8146 phone number with her address at 2:02 a.m.; at 2:09 a.m. the user of the -8146 phone number communicated that the user was on the way; shortly afterwards, Ringer‘s phone
Ringer‘s phone sent a text message to Bell‘s phone at 2:30 a.m., saying that a friend wanted to purchase a gram of marijuana for ten dollars. Also at 2:30 a.m., Ringer‘s cell phone made a three-second phone call to Reese‘s cell phone.
At 2:31 a.m., Bell‘s cell phone responded to the message from Ringer‘s phone asking to buy marijuana, asking, “U gone Kum get it,” and Ringer‘s phone responded saying, “Ya” at 2:40 a.m. Then, at 2:43 a.m., Ringer‘s phone sent a text message to Reese‘s phone, asking to buy two grams of marijuana for fifteen dollars, and her phone called Reese‘s phone again at 2:44 a.m., this call lasting for 20 seconds.
Ringer‘s phone then received two missed calls from Bell‘s phone number at 2:48 a.m., a text message from his phone number asking to bring him a “blunt” at 2:49 a.m., and another text message from his phone number at 3:09 a.m. saying, “Yoo kall me real quick.” Ringer‘s phone also received multiple missed phone calls and
In November 2015, officers finished reviewing the surveillance videos from outside Reese‘s house. The videos included footage of the shooting, which the two cameras affixed to Reese‘s house captured from different angles. The video recorded from the camera on the left side of Reese‘s house captured what Reese now concedes is him firing a gun and running across his yard. The video recorded from the cameras on the right side of Reese‘s house captured the Versa parking in front of Reese‘s house, a flash near the road, and then a larger flash in Reese‘s yard. Reese concedes on appeal that the larger flash was a muzzle flash that resulted when he fired a gun.4
(c) Video recordings from the surveillance system were played at trial. The State played the two surveillance videos portraying the
A GBI firearm examiner, Investigator Jason Roach, testified at trial about the surveillance videos, explaining that the first flash of light shown on the camera from the right side of Reese‘s house, near the road, was not “consistent with a muzzle flash” and was “more consistent” with “a bullet impact.” He also testified that there was a muzzle flash seen near the person standing in Reese‘s yard, which occurred after the sparks from the “bullet impact.” On cross-examination, Reese‘s trial counsel asked if Investigator Roach could determine where the gunshot that caused the bullet-impact flash came from. Investigator Roach testified that if the two surveillance videos were synchronized, then there was a possibility that the bullet-impact flash resulted from a gunshot fired by Reese that was
Investigator Roach also explained that he determined the five .45-caliber shell casings were fired from one gun, and that the three .45-caliber bullets and the metal jacket were fired from one gun, but he could not match a bullet fragment recovered from the Versa with the bullets and the metal jacket recovered from in and around the Versa or in Ringer‘s body because the fragment had been “severely damaged.” Nor could he determine whether the .45-caliber shell casings were fired from the same gun as the .45-caliber bullets, metal jacket, and bullet fragments.
Bell—who lived across the street from Reese and around the corner from Ringer—testified that he was with Ringer earlier on the night of the crimes. Specifically, Ringer was at Bell‘s house until around 10:00 p.m. before going home. Closer to 11:00 p.m., Bell went to Ringer‘s house to eat dinner. He returned to his house after dinner and did not see Ringer again. Bell‘s mother, with whom he
Bell also testified about his relationship with Reese. Reese lived across the street from Bell and they had “spoke[n] a few times.” Bell and Reese did not have “bad blood or anything.” When the State asked Bell, “Did you by occasion happen to go over to [Reese‘s] house or see [Reese] that day,” Bell responded, “yeah, earlier.”
Ringer‘s friend, Wright, testified that, on the night of the crimes, he borrowed his cousin‘s red Nissan Versa to drive to Ringer‘s house. Once Wright arrived around 2:20 a.m., he asked Ringer to go buy some marijuana. He was going to ride with Ringer to pick up the marijuana, but Ringer said she wanted go alone, and Wright let her drive the Versa. Wright heard gunshots within “two to three minutes” after Ringer left. Sometime after hearing the gunshots, Wright went to speak with Ringer‘s mother, whom he met that night and with whom Ringer lived, and he tried calling Ringer.
Detective Rittberg testified that he spoke with Bell‘s mother shortly after the crimes, and Bell was present during the conversation. Bell did not tell Detective Rittberg that he knew Ringer, that he was at Ringer‘s house on the night before the crimes, or that he had been communicating with her leading up to her death. Detective Rittberg acknowledged that Tarver told him that she
Reese did not present any witnesses or testify at trial. During closing arguments, Reese‘s trial counsel argued that Reese was justified in shooting Ringer because the first flash seen on the surveillance video, which was near the road, showed the ricochet of a shot fired at Reese by a shooter outside the camera‘s view; that Reese only fired after first being shot at which might show some “excuse or mitigation” for the shooting; that Ringer, along with someone else, was trying to rob Reese; and that the absence of shell casings from more than one gun did not rule out a second shooter
Reese‘s trial counsel also argued that Bell might have been involved in Ringer‘s attempted robbery of Reese. To that end, counsel contended that, after the car Ringer was driving passed Reese‘s house, Ringer stopped at Bell‘s house before turning the car around, that Bell saw Ringer during this stop, and that Bell texting and calling Ringer before and after the shooting showed Bell was lying when he testified that he was asleep during the shooting.
The jury convicted Reese of malice murder, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a felony. Reese was sentenced to life in prison and five years, to be served consecutively.
The plain-error standard has four prongs.
First, there must be an error or defect—some sort of “[d]eviation from a legal rule“—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the trial court proceedings.” Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.‘”
Taylor v. State, 315 Ga. 630, 637 (884 SE2d 346) (2023) (quoting Gates v. State, 298 Ga. 324, 327 (781 SE2d 772) (2016)). Reese must satisfy all four prongs to succeed on this claim. But even assuming that the trial court not instructing the jury on justification and no duty to retreat was clear and obvious error and that this assumed error was not affirmatively waived, this claims still fails because Reese has not shown that the assumed error likely “affected the outcome” of his trial.
“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other‘s imminent use of unlawful
Reese‘s sole defense at trial was self-defense; his theory was that someone shot at him first and that he fired the shots that killed Ringer only in response to someone shooting at him. But the evidence supporting Reese‘s self-defense theory was not sufficiently strong that the omission of the instructions likely “affected the
No witness testified that there was more than one shooter at the crime scene. Investigator Roach did not identify muzzle flashes from the surveillance video anywhere other than in Reese‘s yard. Investigator Roach also testified that all shell casings recovered from the scene were fired from a single .45-caliber weapon, and that all of the bullets recovered from the scene were fired from one .45-caliber weapon. Detective Rittberg testified that there were no bullet defects in cars parked in the driveway of Reese‘s house or in the front door to the house, both of which would have been near where Reese was standing when someone allegedly was shooting at him, and that no gun was found in the Versa.
Reese nonetheless points to a number of facts that he says supports his self-defense theory. First, Reese claims that “forensic evidence” supported the inference that Reese was “on his own property when the shots were fired.” But even assuming that is true, that fact does little, if anything, to show whether someone shot
Because the evidence supporting Reese‘s self-defense theory was weak, we cannot say that the trial court omitting jury instructions on justification likely affected the trial‘s outcome. See Munn, 313 Ga. at 722 (defendant‘s substantial rights were not affected by not instructing the jury on justification when evidence in support of the defense was weak); Jones v. State, 310 Ga. 886, 889 (855 SE2d 573) (2021) (harmless error to fail to charge on defense of self or third person because “evidence supporting a charge on defense of self or a third person” “was meager at best“).9 And
3. Reese contends that the trial court plainly erred by failing to instruct that testimony from an accomplice is insufficient to establish a fact unless it is corroborated. This claim is reviewed for plain error because Reese did not request the instruction at trial, see Rutland v. State, 315 Ga. 521, 523 (883 SE2d 730) (2023), and it fails at the second step because Reese has not shown that the trial court committed a “clear or obvious” error. Taylor, 315 Ga. at 637.
“A jury instruction on the need for accomplice corroboration should be given if there is slight evidence to support the charge.” Stripling v. State, 304 Ga. 131, 136 (816 SE2d 663) (2018) (citation
In Reese‘s view, the jury could have inferred Bell was his accomplice to the charge of possession of marijuana with intent to distribute and to the felony murder of Ringer predicated on that charge. To support that inference, Reese points to the following evidence: Ringer‘s last accepted phone call was from Bell‘s phone number; Ringer‘s phone sent text messages to Bell‘s phone about her purchasing marijuana from Bell; Tarver told detectives that she suspected Bell was involved in Ringer‘s death and in the car when she died; Bell was evasive when police interviewed him; surveillance video showing a flash in the street before Reese‘s muzzle flash; and Bell had a motive and opportunity to commit the crimes.
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013). See also Strickland, 466 U.S. at 687-688. To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel‘s
Claims of ineffective assistance of counsel involve mixed questions of law and fact, and “a trial court‘s factual findings made in the course of deciding an ineffective assistance of counsel claim will be affirmed by the reviewing court unless clearly erroneous.” Green v. State, 302 Ga. 816, 818 (809 SE2d 738) (2018) (citation and punctuation omitted). Conclusions of law based on those facts are reviewed de novo. See Bright v. State, 292 Ga. 273, 274 (736 SE2d 380) (2013).
(a) Reese contends his trial counsel was ineffective for failing to file a motion to suppress what he says was unlawfully obtained evidence. Reese specifically argues that the key ring with the yellow tag and the shell casings recovered from Reese‘s yard, as well as the evidence that Reese‘s house was equipped with surveillance
As background, Detective Jeff Rittberg, the lead investigator, testified at the motion-for-new-trial hearing, as follows. He arrived at the crime scene around 4:00 a.m.; one officer “made [him] aware of keys that he had seen in the grass” and another “secure[d] the
Detective Rittberg conducted a “grid search” of Reese‘s front yard “after 5:04 [a.m.],” around two hours after the shooting, and conducted a “grass canvas” with another officer sometime between 5:00 a.m. and 5:57 a.m. Between 7:30 a.m. and 7:40 a.m., a different officer found two shell casings; they were found “in close proximity” to the key ring that was lying in the grass in Reese‘s yard. The two shell casings and the key ring were found near what Detective Rittberg called a dirt “pad” in Reese‘s yard leading to the steps to his front porch.
Detective Rittberg also testified about the surveillance cameras on the outside of Reese‘s house. Reese‘s counsel asked if he observed the cameras while walking through Reese‘s yard, and
In its order denying Reese‘s motion for a new trial, the trial court expressly found that Reese‘s “home was on the corner of two public streets and could be viewed by pedestrians on both streets,” and that his “front yard was not surrounded by a fence, gate, [or] privacy screen.” It further found that Reese did not “attempt in any other way to obscure the front yard from view,” and concluded that Reese‘s yard was not used as an extension of the home.
The
The Fourth Amendment‘s protection of “houses” includes areas surrounding a house to the extent that the area is properly classified as curtilage. See Oliver, 466 U.S. at 180. “[F]or Fourth Amendment purposes,” curtilage is considered “part of the home itself,” id., and is defined as “the area ‘immediately surrounding and associated with the home.‘” Jardines, 569 U.S. at 6 (quoting Oliver, 466 U.S. at 180). The Supreme Court in United States v. Dunn, 480 U.S. 294, 301 (107 SCt 1134, 1139, 94 LE2d 326) (1987), laid out four factors for courts to “reference” when answering “curtilage questions“: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the
Reese has failed to show that a motion to suppress based on his proposed curtilage argument would have been successful. See Tabor, 315 Ga. at 249 (“Where, as here, an appellant claims that trial counsel was deficient for failing to file a motion to suppress, the appellant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.“) (cleaned up). To start, despite Reese‘s arguments to the contrary, Reese has not shown that officers were in his yard, or on any of his property for that matter, when they discovered the surveillance
As for the key ring and shell casings, Reese has failed to make a “strong showing” that those items would have been suppressed based on his argument that the officers who found those items without a warrant did so in an area that was curtilage. Id. at 249. Pictures admitted into evidence at trial indicate that the key ring and shell casings were found in close proximity to Reese‘s house, but no evidence was admitted regarding the exact distance between the house and the area of his yard where the key ring and shell casings were found, and Reese did not offer evidence about what the relevant area of his yard was used for. On this score, the trial court concluded that Reese‘s “front yard was not used as an extension of the home.”
At bottom, Reese introduced very little evidence in support of this claim at the motion-for-new-trial hearing, and the only fact that the trial court might have weighed in favor of the relevant area of Reese‘s yard being curtilage was its proximity to Reese‘s house.11 But that proximity was never quantified, and we cannot conclude that uncertain proximity by itself so clearly established that the relevant area of Reese‘s yard “is so intimately tied to the home itself” such that the key ring and shell casings likely would have been suppressed had his trial counsel moved to exclude them. Dunn, 480 U.S. at 301. See also United States v. French, 291 F3d 945, 952 (7th Cir. 2002) (“[P]roximity to the home, standing by itself, does not per se, suffice to establish an area as within the curtilage.“) (citing Oliver, 466 U.S. at 182 n.12); Jardines, 569 U.S. at 6 (curtilage is the area “immediately surrounding and associated with the home“) (quoting Oliver, 466 U.S. at 180) (emphasis supplied); United States v. Duenas, 691 F.3d 1070, 1081 (9th Cir. 2012) (front yard was not curtilage when the only factor suggesting the front yard was curtilage was proximity, and “the front yard was not enclosed; there was no evidence as to how the yard was used; nor was there any evidence that the [the defendant] tried to protect the yard from observation“). Accordingly, Reese has failed to show that his trial counsel was constitutionally deficient in failing to file a motion to exclude the key ring and shell casings. See Tabor, 315 Ga. at 249 (to establish trial counsel was deficient in this context, “the appellant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion“) (cleaned up); Ward v. State, 313 Ga. 265, 275 (869 SE2d 470) (2022) (trial
(b) Reese contends his trial counsel provided ineffective assistance of counsel by failing to request an accomplice-corroboration charge. His claim fails because, as discussed above in Division 3, Reese has failed to show that slight evidence supported an inference that Reese and Bell were accomplices to the charge of possession of marijuana with the intent to distribute. Therefore, Reese has not shown his trial counsel was constitutionally deficient for failing to request an accomplice-corroboration instruction. See Matthews v. State, 311 Ga. 531, 545 (858 SE2d 718) (2021) (“failure to make a meritless motion or objection” is not constitutionally deficient) (cleaned up).
(c) Reese argues that his trial counsel provided ineffective assistance by not objecting to an allegedly improper sequential jury instruction. Reese has failed to show his trial counsel was constitutionally deficient for not objecting to this instruction.
If, after considering the testimony and evidence presented to you, together with the charge of the court, you should find and believe beyond a reasonable doubt that the Defendant in Fulton County, Georgia, did on or about August 19, 2015, commit the offense of murder, as alleged in count 1 of the indictment, you would be authorized to find the Defendant guilty. In that event, the form of your verdict would be, “We, the jury, find the Defendant guilty of murder.” If you do not believe that the Defendant is guilty of murder, or if you have any reasonable doubt as to the Defendant‘s guilt, then it would be your duty to acquit the Defendant, in which event, the form of your verdict would be, “We, the jury, find the Defendant not guilty of murder.” For each of the following counts, counts 2 through 9 of the indictment, you should follow the same procedure as described above as to each of said counts. You must make a determination as to each count separately. . . .
Whatever your verdict is, it must be unanimous, that is, agreed to by all of you. The verdict must be in writing and signed. . . .
You‘ll have the verdict form out with you. There are, you know, nine different counts. And as I‘ve instructed you, you‘re to consider each one separately. And in count 1, it has, we, the jury, find the Defendant Larry Reese - and the first entry is guilty of murder. If you believe the State proved murder beyond a reasonable doubt, you would check that.
And if you don‘t find that the State has carried the burden of proof on murder, but one of the - you need to determine whether the Defendant is guilty of the lesser included offense of involuntary manslaughter 7. And if you find such, you should check that.
And if you find that the State has failed to prove the Defendant‘s guilt beyond a reasonable doubt, then you would check number 3, not guilty of murder.
And the same goes for felony murder. There‘s also a lesser included offense here. You need to consider the felony murder first. If you don‘t find that, then you would consider involuntary manslaughter. If you don‘t find that, then it would be not guilty of murder.
So you follow that course with each count.
“[W]hen the evidence presented in a criminal trial warrants a jury instruction on a lesser-included offense,” a trial court violates the rule against impermissible sequential jury instructions “if it instructs the jury that it may consider the lesser offense only if it first unanimously finds the defendant not guilty of the indicted greater offense.” Stewart v. State, 311 Ga. 471, 473-474 (858 SE2d 456) (2021). Reese contends the trial court ran afoul of this rule when it instructed the jury to “consider felony murder first. If you don‘t find that, then you would consider involuntary manslaughter.”
We were unpersuaded. We noted that the appellant had “cite[d] only one appellate case that actually reversed a conviction based on an improper sequential jury instruction“—Kunselman v. State, 232 Ga. App. 323 (501 SE2d 834) (1998)—and distinguished the facts of Kunselman from the appellant‘s. See Stewart, 311 Ga. at 476 (“In Kunselman, the Court of Appeals rejected an instruction that, if the jury found the defendant not guilty of the indicted
Here, like the appellant in Stewart, the only case Reese cites reversing a conviction based on an improper sequential jury instruction is Kunselman.12 And unlike in Kunselman, the trial court in this case did not “expressly prohibit the jury” from considering the lesser included offenses until after it reached a unanimous verdict on the indicted offenses. See Stewart, 311 Ga. at 476. To the contrary, the trial court‘s instruction in this case better
Judgment affirmed. All the Justices concur.