Roberts v. StateRoberts v. State
Melvin Roberts was convicted of malice murder and other crimes in connection with the shooting death of Jabari Pettway.1 On appeal, Roberts contends that the trial court erred in admitting evidence of an armed robbery he allegedly committed nine days
We affirm on a different legal basis. A limited portion of the physical evidence and testimony from the armed robbery placed the murder weapon in Roberts‘s hands just nine days before Pettway‘s murder. That limited evidence was not subject to Rule 404 (b) because it was admissible as evidence intrinsic to the charged crime. The same cannot be said for the armed-robbery evidence as a whole, but any error in admitting evidence of the robbery beyond the intrinsic portion was harmless, because the evidence against Roberts that was properly admitted was quite strong, and the court‘s limiting instruction about the armed-robbery evidence mitigated the chance that the jury considered the extraneous details of the
1. Facts
(a) Around 7:30 p.m. on November 1, 2016, 23-year-old Jabari Pettway left the Duluth apartment he shared with his brother, Marqueze Marshall, in his 2012 silver Dodge Avenger. Marshall testified that his brother was going to meet a friend and that he left carrying a red book bag, along with his wallet and cell phone. Later that evening, around 9:55 p.m., Pettway called Marshall to tell him he was on his way home. But Pettway never made it home. The next morning, after trying to reach Pettway, Marshall called their mother, Casandra Mosley, to let her know Pettway was missing.
Mosley testified that Marshall called her around noon on November 2 and told her that Pettway had not come home the night before and had not shown up for work or school that day. After calling local hospitals, Mosley called Pettway‘s cell phone carrier and got a list of Pettway‘s recent calls. Mosley and Pettway‘s sister, Renee Hunter, started calling the numbers on the list, and both eventually spoke to Roberts, whom Pettway had known in high
In the meantime, Gwinnett County police had been called to respond around 8:00 a.m. that morning after the body of an unidentified male was discovered in Snellville on the edge of a Gwinnett County farm abutting Lenora Road. The man was dead, having been shot multiple times in the back. At the scene, investigators recovered five .40-caliber shell casings and two cigarette butts. The cigarette butts were distinctive because they had been smoked past the filter. The victim‘s left front pants pocket was pulled out, and no car keys, wallet, or cell phone were found at the scene.
The victim of the shooting was later identified as Pettway. The medical examiner testified that he had suffered five gunshot wounds, one to the arm and four to the back, and opined that the
Witness Jimmy Beaver testified that late in the evening on November 1, he was watching the World Series on television at his Snellville home on Lenora Road when he heard a car drive past, heading in the direction of where the paved road turned to gravel. A few minutes later, he heard a single gunshot, followed by a one- to two-second pause, and then four rapid-fire shots. About two minutes after that, he heard a car speed back up the gravel road, hit the pavement, and drive away.
Based on Beaver‘s report that the shots were fired during the sixth inning of the World Series game, the lead investigator in the case, Corporal Shannon Kulnis, determined that the shooting had occurred between 10:00 and 10:30 p.m. Investigators became interested in Roberts because of his apparent interactions with Pettway just before the murder. Cell-tower records indicated that a phone call Pettway placed at 9:49 p.m. “pinged” from the same cell tower as a call Roberts placed at 9:38 p.m., indicating that they were together shortly before the murder. This cell tower was near the site
Corporal Kulnis determined that Roberts had an outstanding arrest warrant. After using cell-tower records to locate Roberts, police made a traffic stop, took him into custody, and confiscated his cell phone. An inventory search of his car turned up boxes of Newport cigarettes and a Samsung Galaxy cell-phone box.
(b) At the police station, Roberts waived his rights under Miranda2 and agreed to speak with investigators. In the video-recorded interview, Roberts admitted that he had been with Pettway earlier on the night of the murder, but he denied any involvement in the shooting. He admitted that he and Pettway had been intermittent sexual partners over the previous two years. On the evening of the murder, Roberts said, Pettway had come to his home in Lawrenceville, where they “did sexual things.” They then left to buy cigarettes, and after that, Roberts said, they parted ways. Roberts said he had expected Pettway to return later that evening, but Pettway never showed up.
In his interview, Roberts first told the investigators that after returning from the cigarette run, he had stayed at home the entire evening. He also said he had his cell phone with him at all times that night. Investigators then confronted him with evidence showing that, after the time of the cigarette purchase, both his phone and Pettway‘s phone were in close proximity, near the crime scene. At that point, Roberts claimed he had been at his grandmother‘s home, which was near the crime scene. He explained his earlier dishonesty about his whereabouts by saying he just “didn‘t want to get [himself] involved” in the investigation.
Glover testified that Roberts called him late in the evening on November 1 and asked to come see him. At the time, Glover was at his girlfriend‘s home in the Allen Hill apartment complex in southwest Atlanta. Glover agreed, and Roberts drove to Allen Hill, where he met Glover in the parking lot. Roberts told Glover he was “trying to get rid of his car” and offered to pay Glover to help; Glover agreed. Glover testified that he believed there was “an insurance situation” and that Roberts was “just doing it for the money.”
Glover‘s girlfriend, Quaneshia Cleckley, also testified for the State. She testified that, late on the night of November 1, Glover asked to borrow her car, and she saw Glover leave the apartments with a man—whom she identified at trial as Roberts—following in a different car. When they returned about 30 minutes later, Glover asked if Roberts could stay the night, and she agreed. She recalled
(d) Investigators discovered that Roberts‘s car had a GPS tracking device that had been installed by a lienholder. They got the GPS records, which showed the car‘s location approximately every 24 hours. The records showed that, at 1:33 a.m. on November 2, the car was located less than a mile from the crime scene, and at 2:33 a.m. on November 3, the car was in the area around Allen Hill.
The GPS tracking records, together with cell-tower records showing that Roberts had traveled from the area around the crime scene to the area around Allen Hill, led investigators to obtain surveillance-video footage from the night of the murder from the Allen Hill apartments. That recording shows a silver Dodge Avenger pulling into the complex at 11:11 p.m. Cell-phone and tower records show Roberts‘s phone placing calls in that vicinity at 11:10 and 11:14
The Allen Hill surveillance video and cell-phone and tower records also corroborated Glover‘s account of the events of the subsequent day and night. The cell records reflect that Roberts placed calls to Glover on the afternoon and evening of November 2, into the early hours of November 3, and that Roberts‘s phone was in the area of Allen Hill on November 3 around 2:30 a.m. The video shows Roberts arriving at Allen Hill around 2:30 a.m. on November 3 in his blue Hyundai Sonata and Glover getting in the car.
On November 3 at around 4:30 a.m., firefighters responded to
Despite the evidence of his contacts with Glover, Roberts insisted in a second custodial interview that he did not know Glover and, when confronted with the cell records and other evidence, he claimed this evidence was all “a lie.”
An examination of Pettway‘s phone records revealed a series of phone calls to Pettway on the evening of November 1 from a “Pinger account,” an online application that can be used to place phone calls anonymously, from a “ghost number,” which looks like a legitimate phone number but is not the actual number from which the call is placed. Records obtained from Pinger showed that the subscriber on the account was Roberts, who had created the account at 6:55 p.m. on November 1—52 seconds before the first call was placed to Pettway.
DNA testing on the two cigarette butts recovered from the crime scene showed that one had DNA consistent with that of Pettway, while the other had DNA consistent with that of Roberts.
Although Mendoza did not know who Roberts was at that time and could offer police only a description of her attacker, she saw a social-media post about Pettway‘s murder the next week and immediately recognized Roberts, who was pictured in the post, as her assailant. She told Detective Kim.
Detective Kim contacted Corporal Kulnis with this information. Through her investigation, Corporal Kulnis had learned that Roberts had pawned a cell phone on October 28, 2016, and this cell phone was ultimately determined to have been Mendoza‘s. Further investigation showed that the cell phone Roberts was using at the time of Pettway‘s murder had been activated on October 24, 2016—one day after the attack in which Roberts had left his phone behind.
2. Analysis
In his only enumeration of error, Roberts contends that the trial court erred by allowing the State to introduce evidence of the armed robbery of Mendoza. The trial court allowed the State to introduce that evidence under
(a) Rule 404 (b) places specific limits on admitting “evidence of . . . other crimes, wrongs, or acts.” Evidence of a defendant‘s past
But Rule 404 (b) applies only to “evidence of . . . other crimes, wrongs, or acts“: in other words, evidence that is extrinsic to the charged crime.
The line between extrinsic and intrinsic evidence is not always a bright one, see Harris v. State, 310 Ga. 372, 381 (2) (b) (850 SE2d 77) (2020), and courts have drawn that line using a number of different (and sometimes overlapping) phrases meant to distinguish “direct evidence of the charged crime” from evidence of other crimes subject to Rule 404 (b). United States v. Shea, 159 F3d 37, 39 (1st Cir. 1998). See also United States v. Roberts, 933 F2d 517, 520 (7th Cir. 1991) (describing intrinsic evidence as “directly relevant to the crimes with which [the defendant] was charged“).4 To this end, we have said that evidence is considered intrinsic to the charged offense when it is “(1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably
But a limited portion of the evidence of the armed robbery is properly considered intrinsic. See Battle, 774 F3d at 512 (noting that “limited evidence” about prior crime committed with the same gun—including ballistics evidence and testimony identifying defendant as shooter—was intrinsic); Roberts, 933 F2d at 519-20 (affirming admission of evidence about police chase after crime committed two days after charged offenses, in which officers seized from defendant the weapon used in the charged offenses; although the later crime was not intrinsic and was properly excluded, the “cautiously edited testimony regarding the government‘s recovery of [the] gun” was
As intrinsic evidence, this limited evidence from the armed robbery was admissible as long as it satisfied
(c) That leaves the rest of the evidence of the armed robbery. Evidence that did not directly relate to the shell casing or identify Roberts as the person who possessed, shot, and left with the gun was
A non-constitutional evidentiary error requires reversal only if it “harm[s] a defendant‘s substantial rights,” and we determine whether such harm occurred by asking whether it is “highly probable that the error did not contribute to the verdict.” Williams v. State, 313 Ga. 443, 448 (1) (870 SE2d 397) (2022). As part of that determination, we review all the evidence de novo, after setting aside the evidence admitted in error, and “we weigh the remaining evidence as we would expect reasonable jurors to have done so.” Id. (cleaned up).
Here, the evidence that was properly admitted against Roberts, although circumstantial, was quite strong. The intrinsic evidence
In light of this very strong evidence, it is highly probable that
Judgment affirmed. All the Justices concur.