Case Information
*1 In the Supreme Court of Georgia
Decided: June 16, 2014
S14A0482. SUTTON v. THE STATE.
THOMPSON, Chief Justice.
Appellant Christopher Sutton was convicted of malice murder and other crimes in connection with the shooting death of Dwight Smith. [1] He appeals, asserting, inter alia, the trial court erred in failing to grant his motion for new trial based on newly discovered evidence. Finding no error, we affirm.
1. Appellant was one of five perpetrators who conspired to rob the murder victim, who was a tattoo artist. Three of the conspirators, appellant, Michael *2 Smith and Miche Hunt arrived at the victim’s house in appellant’s mother’s automobile. They entered the house, ostensibly for the victim to tattoo Hunt, and spoke with the victim about tattoos. Then Smith sat on the couch with the victim’s cousin, 17-year-old Khiry Clemons, who was visiting the victim and playing a video game.
Clemons testified at trial that when Hunt went to the bathroom, Smith pulled out a gun and told him to get down on the floor; that appellant drew a gun on the victim, who fought back and attempted to grab the gun; that during the struggle the victim was shot in the head; that appellant and Smith fled; and that they were followed out the door by Hunt, who, after exiting the bathroom, stopped to pick up her belongings.
Michael Smith pled guilty to conspiracy to commit a crime and also testified at trial. He averred that he entered the murder victim’s house with appellant and Miche Hunt; that he was carrying a .45 pistol, which had been given to him by another conspirator, Denarryl Head, and that appellant carried his own weapon; that, while they were speaking with the victim about tattoos, Hunt passed them a message instructing them to draw their guns when she went to the bathroom; that when appellant drew his gun, the victim pulled out his *3 pockets to show appellant he did not have any money; that the victim grabbed appellant’s gun; and that during the struggle for the gun, appellant shot the victim. Smith added that appellant later told him that he shot the victim in the course of the struggle because he “really didn’t have a choice.”
Appellant contends the evidence was insufficient to support the verdict because it rested solely on the uncorroborated testimony of Michael Smith, an accomplice to the crimes. See former OCGA § 24-4-8 (to sustain felony conviction, testimony of accomplice must be corroborated). [2] We cannot accept this contention.
“[S]light evidence of corroboration connecting the defendant with the
crime satisfies the requirements of OCGA§ 24-4-8 and that evidence may be
entirely circumstantial. Also, evidence of the defendant's conduct before and
after the crime may give rise to an inference that he participated in the crime.”
Parkerson v. State,
2. GBI firearms examiner Bernadette Davy testified that a .380 cartridge
was found at the scene; that that cartridge could not have been fired from a .45
pistol; that it was consistent with having been fired from either a Bryco or
Lorcin .380 pistol; that, if those type of guns were working properly, it would
take between seven and ten pounds of rearward pressure to fire them; and that
that amount of pressure would be inconsistent with an accidental trigger pull.
At the motion for new trial, appellant introduced evidence showing that Davy
resigned from the GBI on April 1, 2009, following an investigation which
demonstrated that she intentionally fabricated firearms data in another, unrelated
case. Appellant asserts the trial court failed to grant his motion for new trial
*5
based on this newly discovered evidence. We disagree. A new trial will not be
granted on the basis of newly discovered evidence where, as here, the only effect
of the evidence would be to impeach the credibility of a witness. Timberlake v.
State,
3. Appellant contends the trial court erred in permitting the lead detective
to testify that Miche Hunt told him appellant went inside the victim’s house. In
this regard, appellant argued the out-of-court statement was testimonial in nature
and violated his right of confrontation because Hunt did not testify. See Gay v.
State,
In a related argument, appellant also claims the detective’s testimony
concerning Miche Hunt’s out-of-court statement violated Bruton v. United
States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968). We disagree.
“Bruton only excludes statements by a non-testifying co-defendant that directly
inculpate the defendant.” Moss v. State,
4. Appellant erroneously asserts the State failed to prove venue. Several
witnesses, including the lead detective and a neighbor of the victim, testified the
crimes occurred in Fulton County. See Bulloch v. State,
5. The trial court did not err in failing to give appellant’s request to
charge on bare suspicion. A defendant is not entitled to such a charge where,
as here, the evidence raises more than a bare suspicion of guilt. Range v. State,
6. Appellant contends trial counsel rendered ineffective assistance
because he failed to (a) challenge Khiry Clemons’ in-court identification of
appellant as the shooter on the ground that it was based on a photographic lineup
which was impermissibly suggestive; (b) object to the testimony of Bernadette
Davy concerning the rearward trigger pull of a typical Bryco or Lorcin .380
pistol on the basis that it was speculative; (c) secure and communicate a plea
*8
offer to appellant and counsel him as to the maximum sentence he could receive
and the length of time he would have to serve before he would be eligible for
parole. He also posits that post-conviction counsel rendered ineffective
assistance because he neglected to (d) ensure that lead trial counsel would
appear at the new trial hearing, as well as subpoena appropriate witnesses to
testify about Davy’s resignation from the GBI; (e) obtain the shell casing found
at the scene for independent testing. To prevail on one or more of these
grounds, appellant must show both that his counsel’s performance was deficient
and that, but for counsel’s unprofessional errors, there is a reasonable
probability that the outcome of the trial would have been different. Strickland
v. Washington,
(a) Clemons told the lead detective the name “Chris” was tattooed on the neck of the shooter. The detective showed Clemons a six-person photographic lineup. At that time, Clemons identified Dennaryl Head as the shooter because “he looked familiar.” As he investigated the case, the detective realized that, *9 although Head was Hunt’s boyfriend and a co-conspirator, he was not at the scene of the crime on the night in question. Thereafter, the detective told Clemons he picked the wrong man out of the lineup and he prepared another photographic array, which included a photo of appellant, for Clemons to view. Clemons identified appellant as the shooter in the second array and he identified him as the shooter at trial. The name “Chris” appears as a tattoo on appellant’s neck.
Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. An identification procedure will not be deemed to be impermissibly suggestive unless it leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is the equivalent to the authorities telling the witness, “This is our suspect.”
Marshall v. State,
Clemons picked out appellant’s photo from the second array on his own
initiative. It cannot be said that the second photographic array was
impermissibly suggestive simply because the lead detective informed Clemons
he picked the wrong suspect from the first array. At no point did the detective
*10
suggest whom Clemons should identify as the shooter. It follows that trial
counsel was not ineffective for failing to challenge Clemons’ in-court
identification. See Moore v. State,
(b) The expert testimony of Davy was admissible, Maldonado v. State,
(c) It cannot be said that trial counsel failed to secure and communicate
a plea deal because a deal was not offered. Compare Lloyd v. State, 258 Ga.
645, 647-648 (2) (a) (
(d) Contrary to appellant’s assertions, lead trial counsel did testify upon the motion for new trial, and the GBI’s Director of Professional Standards testified with regard to the circumstances surrounding Davy’s resignation.
(e) The alleged failure on the part of post-conviction counsel to obtain the
shell casing for independent testing cannot be deemed prejudicial because
appellant has not demonstrated that the results of any such tests would be
relevant and favorable to appellant. Goodwin v. Cruz-Padillo,
Judgment affirmed. All the Justices concur.
Notes
[1] The crimes occurred on November 24, 2006. The grand jury indicted appellant on March 30, 2007, and charged him with the malice murder of Dwight Smith, three counts of felony murder, aggravated assault of Dwight Smith, aggravated assault of Khiry Clemons, conspiracy to commit a crime, criminal attempt to commit armed robbery, and possession of a firearm during the commission of a felony. Trial commenced on November 12, 2008, and the jury returned its verdict two days later finding appellant guilty on all counts. Appellant was sentenced on November 24, 2008, to life for malice murder, ten years for the aggravated assault of Khiry Clemons, and five years (consecutive) for the firearm possession charge. Appellant filed a motion for new trial on December 15, 2008. The motion was amended on May 20, 2011, and October 25, 2011. The trial court denied the motion on March 11, 2013, and appellant filed a notice of appeal on March 23. The appeal was docketed in this Court for the January 2014 term and submitted for a decision on the briefs.
[2] This code section appears as OCGA § 24-14-8 in the new Evidence Code.
[3] Except for minor changes, this law can be found in the new Evidence Code at OCGA § 24-7-707.