Appellant Dominic Trent Stacey was convicted and sentenced for malice murder, theft by receiving, possession of cocaine, and other crimes following the shooting death of Andrew Gibby.
On the evening of November 13, 2006, Stacey and his roommate, Joseph DeDeaux, attempted to hijack a car. Their target was Andrew Gibby, a local drug dealer who drove an Oldsmobile Cutlass with white, 22-inch, rims. DeDeaux arranged to buy marijuana from Gibby in a grocery store parking lot near Stacey and DeDeaux’s
Earlier on the night of the murder, Stacey and DeDeaux visited a neighbors’ apartment and displayed a newly acquired nine-millimeter Ruger pistol. Stacey and DeDeaux attempted to buy accessories for the gun, discussed hijacking someone in an Oldsmobile Cutlass with 22-inch rims, and asked for information on nearby “chop shops” where they could take a stolen car. The day after the murder, Stacey and DeDeaux again met with their neighbors. Stacey admitted to the shooting and said the attempted hijacking “went real bad.” The neighbors later told Ronnie Barnes, a friend of Daniel Gibby, about their conversations with Stacey and DeDeaux and encouraged Barnes to call the police.
Officers executed a no-knock search warrant on the evening of November 14, 2006, and arrested Stacey and DeDeaux in their residence. The officers discovered the stolen nine-millimeter Ruger pistol that Stacey used to shoot Gibby and Smith, an accompanying magazine for the pistol, crack cocaine, and other drug paraphernalia in Stacey and DeDeaux’s shared bedroom. The gun was reported stolen several weeks prior to the murder. The officers found the gun under DeDeaux’s mattress and the magazine was next to Stacey’s mattress. Stacey was lying on his mattress. The cocaine was “directly off the edge of [Stacey’s] mattress . . . within less than a foot of his body.” Stacey admitted to the shooting in his police interview, but asserted self-defense.
1. Stacey concedes the evidence was sufficient to sustain his convictions for murder, aggravated assault, and possession of a firearm, and this Court agrees. At issue is Stacey’s contention that the evidence was insufficient to sustain his convictions for theft by receiving or possession of cocaine. To evaluate this evidence, we must review it in a light most favorable to the verdict and defer to the factfinder’s assessment of its weight and credibility. Jackson v. Virginia,
(a) Although police observed Stacey lying on his mattress with the crack cocaine in reach, a finding of constructive possession must
On the contrary, Stacey admitted he was aware that DeDeaux sold drugs, and witnesses testified to Stacey’s drug use. Moreover, the gun Stacey used in the drug-related murder of Gibby and other drug paraphernalia were found near the cocaine in Stacey and DeDeaux’s room. See Moody v. State,
(b) A person commits theft by receiving when he receives, disposes of, or retains stolen property which he knows or should know is stolen. OCGA § 16-8-7. “ ‘[Bjecause of its very nature, this crime is one that is usually proved in whole or in part by circumstantial evidence.’ ”Martin v. State,
Knowledge that a gun was stolen cannot be inferred even when the defendant bought a gun on the street at a reduced price, Rainly v. State,
2. Stacey contends the trial court erred in giving and failing to give certain instructions to the jury, including a charge on impeachment. However, Stacey made no requests to charge, and raised no objections, at the charge conference. Failure to object to a jury charge precludes appellate review unless the charge constitutes plain error. OCGA § 17-8-58.
None of the jury charges at issue were plain error because they did not constitute clear or obvious error and they did not affect the outcome of the trial. As for the trial court’s charge on impeachment, we note that an “unauthorized charge on an unavailable method of impeachment is generally harmless error” and a conviction “will not be reversed when it is highly probable that an erroneous jury instruction did not contribute to the verdict.” Francis v. State,
3. Stacey contends the trial court erred in rejecting his Batson claim alleging discriminatory use of peremptory strikes to exclude prospective jurors. See generally Batson v. Kentucky,
(1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.
Thomas v. State,
(a) “[T]o carry the burden of production at step two, the proponent of the strike need not offer an explanation that is ‘concrete,’
(b) “[B]oth the United States Supreme Court and this Court have squarely held that a peremptory strike based upon a juror’s demeanor during voir dire may be race-neutral at Batson step two.” Toomer v. State, supra,
Given the State’s explanations, we agree with the trial court that the State provided sufficient race-neutral explanations for its use of peremptory strikes.
Georgia “has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error.” State v. Larocque,
5. Stacey next argues that he received ineffective assistance of counsel because his trial lawyer failed to object to the State’s questions discussed in Division 4, supra. However, Stacey’s first appellate counsel did not raise these issues at the motion for new trial or prior to the docketing of this appeal in this Court. Cf. Lewis v. State,
6. Lastly, Stacey argues that the trial court erred in denying his Jackson-Denno motion in which he sought to exclude inculpatory statements made during his police interview. In this regard, Stacey asserts he was denied his right to an attorney. “[F]ollowing a Jackson v. Denno hearing, this Court will not disturb the trial court’s factual and credibility determinations unless they are clearly erroneous.” Wright v. State,
At the Jackson-Denno hearing, the trial court viewed videotape of the police interview and heard testimony from Stacey and the police officers present at the interview. The officers took multiple steps to ensure Stacey was aware of his rights during the interview. Stacey was given a form stating his Miranda rights, he read the rights back to the officers and signed his initials on the form. While reading his Miranda rights, Stacey asked, “So I can have an attorney?” The officers interpreted this inquiry as a question regarding Stacey’s rights rather than a request for an attorney at that time. One of the officers then read the waiver of rights section of the form, and Stacey signed the waiver. The interview continued without an attorney present.
A defendant must make a request for counsel “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States,
Judgment affirmed in part and reversed in part.
Notes
The crimes were committed on or about November 13,2006. Appellant was indicted with co-defendant Joseph DeDeaux on December 19, 2007 and charged with malice murder, felony murder, two counts of aggravated assault, two counts of possession of a firearm during commission of a felony, theft by receiving, possession of cocaine, and criminal attempt to commit armed robbery. A jury trial was held in July 2009, and appellant was found guilty of malice murder, felony murder, aggravated assault (of Daniel Smith), two counts of possession of a firearm during the commission of a crime, theft by receiving, and possession of cocaine. Appellant was found not guilty of criminal attempt and of the aggravated assault of Gibby. The trial court sentenced appellant to life in prison for malice murder, and consecutive terms for the other convictions, except felony murder which was vacated by operation of law. See Malcolm v. State,
There is a factual dispute over the race of the potential jurors in question. Stacey argued during jury selection that nine individuals struck by the State were African-American. The State argued that eight were African-American and the ninth, Mr. Swanson, listed his race as “other.” The trial court agreed with the State and found that Mr. Swanson “indicated in the questionnaire that he is other than black or white.”