A Fulton County jury found appellant Eric Thompson guilty of two counts of malice murder in connection with the deaths of Andre Geddis and Melody Keller.
I.
Police performing a welfare check found the bodies of Andre Geddis and his fiancée Melody Keller inside their home; someone wielding a .40 caliber gun had shot Geddis and Melody to death. Although there was no sign of forced entry, police suspected robbery because the victims’ cars and electronic equipment were missing and the house was in disarray. Police recovered several shell casings and prescription pills from the home.
Police then canvassed the neighborhood surrounding the victims’ home, but their efforts yielded little evidence. A few days later, one of the victims’ cars, a white Chevy Malibu, was recovered. The second car, a Chevy Tahoe, was found in a different, location a few days later. Both cars had been “stripped.”
Lacking leads, the police obtained a court order for Geddis’s cell phone records. As it turns out, Geddis had exchanged phone calls with Thompson’s co-defendant, Vincent Russell, on the day of the murders. Police were able to determine Russell’s phone number from a police report that Russell filed less than one month after the murders. Russell had reported his .40 caliber Smith & Wesson handgun as stolen and had included a phone number — which matched the phone number in Geddis’s phone records — in the police report as his contact number. By examining Russell’s phone records, police learned that Russell and Thompson
A phone call between Geddis and Coey Keller, Melody’s brother, sheds additional light on the timeline and events surrounding the murders. Geddis called Coey around the same time that Thompson’s phone approached the victims’ home. During the conversation, Ged-dis told Coey that he had arranged to purchase a .40 caliber gun. Though he did not mention any names, Geddis said he was waiting on someone to come over with the gun. Geddis and Melody were shot to death with a .40 caliber Smith & Wesson gun.
In addition to the cell phone evidence, the police developed a lead on a man named Ronnie Heath. Heath eventually pled guilty to voluntary manslaughter in connection with the murders after police learned that he stole a car from the victims’ house on the night of the murders. In 2009, Heath gave two statements to police implicating Thompson as one of the people involved in Geddis and Melody’s murders. At trial, Heath claimed that he had no memory of the night of the murders or of his prior statements to police.
II.
Thompson contends that the trial court erred in denying his motion for a directed verdict of acquittal because the State presented insufficient evidence to convict
A directed verdict of acquittal should be entered where there is no conflict in the evidence and the evidence demands a verdict of acquittal with all reasonable deductions and inferences. OCGA § 17-9-1 (a). This Court applies the same standard of review to a denied motion for directed verdict as that which is used to determine the sufficiency of the evidence. Kitchen v. State,
The evidence as set out above is sufficient to support Thompson’s convictions in this case. While Heath’s 2009 statement to police did make up a significant portion of the testimony connecting Thompson to the murders, it was not the only evidence against Thompson. Cell phone evidence indicates Thompson was near the victims’ home near the time the crimes took place. Direct testimony establishes that Thompson recruited at least one participant in the robbery scheme that resulted in the murders of Geddis and Melody. There is evidence that Thompson knew the security guard was carrying a gun when they drove to the victims’ home for the robbery Police recovered the victims’ white Malibu near Thompson’s home, and the car was “stripped” in the manner described by Heath. And an unanswered call to Geddis’s cell phone pinged off a tower near Thompson’s house just a couple of hours after the murders took place. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice testimony to support a verdict. Edwards v. State,
III.
Thompson contends that the trial court erred by admitting character evidence alleging that Thompson had participated in an attempted armed robbery three-and-a-half years after the murders and that he was a drug dealer who had purchased an assault rifle.
A. Other Acts Evidence: Subsequen t Attempted Armed Robbery. Thompson’s case straddles the divide between Georgia’s former Evidence Code and the date our current Evidence Code became effective, January 1,2013. The hearing on the State’s motion to admit evidence was held on February 29, 2012. During that hearing, the State posited that evidence of
Before Thompson’s April 2013 trial, the trial court revisited its order at Thompson’s request. Thompson specifically asked the trial court to reconsider its ruling in light of the changes to our Evidence Code. Ruling from the bench and outside the presence of the jury, the trial court again determined that the evidence was admissible to show motive, plan, and lack of mistake. Although the trial court maintained that its original findings were correct, it conceded that, under the new Evidence Code, course of conduct was no longer a permissible purpose for other acts evidence. The trial court reiterated its findings that the State could show that Thompson committed the Ward attempted armed robbery, that there was sufficient similarity between the charged murder and the subsequent attempted armed robbery, and that the probative value of the evidence outweighed its prejudicial effect. In sum, the trial court ruled that evidence of Thompson’s involvement in the attempted armed robbery of Ward would be admissible to show motive, plan, and lack of mistake under our new Evidence Code at the time of Thompson’s trial.
During Thompson’s trial, the State offered testimony about the attempted armed robbery ofWard. Before that testimony was entered, the trial court instructed the jury that it could consider the evidence for plan, motive, and to negate or disprove mistake. The jury was not instructed that it could consider the evidence for purposes of intent. In fact, Thompson’s counsel objected to including an intent instruction because the trial court had not previously identified intent as a permissible purpose in its written order or in its ruling from the bench. The State agreed that intent would not be included in the jury instruction. At trial, the State’s witness changed his story and denied that Thompson had been involved in the attempted armed robbery
The State proceeded to impeach its witness with a transcript of prior statements he made nine months earlier while pleading guilty to the attempted armed robbery At the time of his plea, the witness had identified Thompson as one of the people involved in the attempted armed robbery. In addition to the witness’s testimony and impeachment, the State presented a document showing that Thompson was indicted in connection with the attempted armed robbery of Ward and that Thompson pled guilty to charges including criminal attempt to commit armed robbery in connection with that crime. The trial court admitted a copy of the indictment and Thompson’s plea agreement as exhibits.
In evaluating the admission of this evidence, we start with the proposition that OCGA § 24-4-404 (Tb) (“Rule 404 (b)”) is, on its face, “an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts evidence is deemed relevant and may be properly offered into evidence.” State v. Jones,
The trial court concluded that the Ward attempted armed robbery was admissible to show Thompson’s motive to commit the murders. Evidence of the defendant’s motive is of course relevant, even though it may incidentally place the defendant’s character in evidence. “Motive has been defined as ‘the reason that nudges the will and prods the mind to indulge the criminal intent.’ ” Bradshaw,
The fact that Thompson may have committed a similar type of crime — an armed robbery coordinated with a group of perpetrators — is not enough to show motive for the murders at issue under Rule 404 (b). United States v. Ricks,
The State alleged that the murders and the subsequent attempted armed robbery showed that Thompson would shoot at people when he was angry But the witness to the attempted armed robbery did not testify that Thompson used a gun during that crime. And the evidence in this murder trial did not indicate that Thompson was inside the apartment when the victims were shot. We are particularly unpersuaded that the presence of a gun at the scene of each crime is sufficient, without more, to show motive when there is no implication that the defendant was the one who used a gun during the crimes. There is no apparent reason that the subsequent attempted armed robbery shows evidence of motive rather than propensity That later act was not connected to the murders, and the only similarities it shares with the murders are the all-too-common elements of guns and an assortment of co-conspirators. Thompson’s participation in a crime that involved a gun, attempted armed robbery, and co-conspirators is therefore not enough to show motive for the earlier unrelated crime.
The fact that the subsequent attempted armed robbery was not admissible to show motive is not the end of our inquiry because the jury was also instructed that it could consider the subsequent act as evidence of plan or lack of mistake. But there is nothing in the record to suggest that the two crimes were part of a common plan. United States v. McNair,
On appeal, the State contends that the evidence at issue was properly admitted to show intent. Whether it could have been or not, it was not. The trial court did not instruct the jury on intent. And before the evidence was admitted, Thompson specifically objected to any instruction on intent, and the State agreed to remove the language. Under these circumstances, we decline to consider whether the evidence would have been admissible to show intent, although this declination should not be read as a suggestion that the answer would be different, if we did consider intent. Accordingly, we conclude that the evidence of Thompson’s subsequent attempted armed robbery was not properly admitted.
The trial court’s error in admitting the subsequent attempted armed robbery requires that Thompson be given a new trial unless we can conclude that the test for nonconstitutional harmless error has been satisfied. In other words, we must examine “whether it is highly probable that the error did not contribute to the verdict.” Smith v. State,
To be sure, there is evidence that Thompson’s phone was near the crime scene at about the time the murders took place. But the phone records are not precise enough to pinpoint exactly where Thompson was the night of the murders. Likewise, the evidence that Geddis’s phone pinged off a tower near Thompson’s house sometime after the murder took place does not establish that Thompson had the victim’s phone. But unlike in cases where other direct or circumstantial evidence connects the defendant to the crime — thus making it highly unlikely that improper evidence influenced the jury’s verdict — here the testimony of an ever-shifting witness (Heath), and the fact that the stripped Malibu was found near Thompson’s home is the only other evidence tying Thompson to the crime. Moreover, the prosecution emphasized in closing that Thompson had a history of armed robbery — precisely the kind of propensity argument that Rule 404 (b) is designed to guard against.
So, although the properly admitted evidence is sufficient to convict Thompson, we cannot say that it is so overwhelming, or that the improper character evidence was so marginal, that the jury’s verdict was not likely to be impacted. We must reverse.
B. Other Acts Evidence: Thompson ’s Drug and Gun Activities. Although Thompson’s convictions in this case will stand reversed,
Heath’s statement to officers that Thompson was a drug dealer was used to prove the motive and circumstances immediately surrounding the murders. The evidence also provides context to Heath’s testimony that he entered the car under the pretense that Thompson wanted Heath to test drugs. Evidence that Thompson was a drug dealer went directly to explaining why he would ask Heath to come with him to “test drugs,” and was, therefore, admissible “even if it incidentally places [the defendant’s] character at issue.” Davis v. State,
And contrary to Thompson’s contention before this Court, the jury heard Heath claim in a video interview that Thompson purchased a gun from Russell. Heath did not claim that Thompson sold the gun to Russell. Purchasing a gun is not the type of act that relates to Thompson’s character. Williams v. State,
IV.
Thompson also contends that the trial court erred when it allowed Coey to testify about a conversation he had with Geddis on the night Geddis and Melody were murdered because the statement did not have the requisite guarantees of trustworthiness to be admissible pursuant to OCGA § 24-8-807 (“Rule 807”). In that conversation, Geddis told Coey that he was waiting on someone to come over to sell him a .40 caliber gun. As it turns out, the same caliber gun was used to kill Geddis and Melody We conclude that the trial court did not abuse its discretion when it determined that Coey’s testimony was admissible.
Under the residual exception to the hearsay rule, a statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness is admissible if the court determines that:
(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
OCGA § 24-8-807. A Rule 807 analysis must consider whether the statements have guarantees of trustworthiness given the circumstances under which they were made. Rivers v. United States,
Much of the Rule 807 analysis is easily satisfied here. The statement that Geddis was waiting on someone to come to their home and sell him a .40 caliber gun was a material fact given that Geddis and Melody were later shot to death with a .40 caliber gun and there was no forced entry into their home. There was no comparable evidence available on this point; during the hearing, the State averred that it did not have any other evidence to show that one of the victims was planning to buy a handgun that night or that the victims expected someone to come by their home. Admitting the otherwise unavailable evidence that established Geddis was waiting for someone to come over on that day and sell him a gun of the same caliber that was used to kill him is consistent with the general requirement of providing a fair trial designed to reach the truth. See United States v. Munoz,
Thompson urges that, even if Coey’s statement is otherwise admissible under Rule 807, the trial court should have excluded the statement because the State failed to provide appropriate notice of its intent to use Coey’s statement or testimony The State counters that Coey’s statement was included in the pretrial discovery materials given to Thompson in 2010. Under Eleventh Circuit precedent, failure to provide pretrial notice of Rule 807 evidence is not fatal if the defendant is not harmed by the lack of notice and had a fair opportunity to address the statements. See United States v. Parker, 749 F2d 628, 633 (11th Cir. 1984). But that issue of notice is unlikely to arise during a retrial, so we leave for another day the determination of what constitutes “harm” and “fair opportunity” within the context of Rule 807.
V.
Likewise, we decline to address Thompson’s remaining contentions concerning the trial court’s denial of his request for a continuance to locate a witness and the effectiveness of trial counsel.
Although we reverse Thompson’s criminal convictions based on the incorrect admission of evidence, we again note that there was sufficient evidence to sustain the jury’s guilty verdicts. Double jeopardy therefore would not bar a retrial in this instance.
Judgment reversed.
Notes
The crimes took place on May 15, 2008. Thompson was charged with two counts of malice murder, two counts of felony murder (predicated on armed robbery), two counts of armed robbery, two counts of aggravated assault, and one count of possession of a firearm during the commission of a felony. The jury returned guilty verdicts on all counts. Thompson received a life sentence for each of the malice murder counts and a five-year sentence for the possession of a firearm count. Although the trial court improperly merged Thompson’s armed robbery convictions, we do not address that error in light of the reversal in Division III. Thompson filed a motion for new trial, which was amended with new counsel. Following a hearing, the trial court denied his motion on January 27, 2015. Thompson filed a timely notice of appeal, and the case was docketed in this Court to the April 2017 term and submitted for a decision on the briefs.
Thompson was the registered subscriber for his cell phone.
Testimony at trial established that Russell and Thompson knew each other prior to the murders. Russell’s sister was dating Thompson prior to the crimes. Russell’s former girlfriend testified that Thompson was the godfather to two of her three children and that Russell’s sister was the godmother to those children.
On the stand, Heath admitted that he had agreed to testify truthfully as part of his own plea agreement. But he also testified that he was dissatisfied with his plea deal. Heath claimed at trial that he did not participate in the murders and did not see anyone else participate in the murders.
Russell testified at trial. He admitted that in 2008 he was working as a security guard for a club. Russell admitted that he and a friend went to Geddis’s home one Friday night, and he witnessed Geddis giving “weed” to another person. Russell’s girlfriend also testified that he was working as a security guard in 2008.
During the 2009 statements, police asked Heath to draw a picture of the interior of the victims’ home. Other witnesses at trial confirmed that Heath’s picture accurately represented the interior of the victims’ home.
At trial, and over Thompson’s objection, the State called Darious Bell to testify about the attempted armed robbery of Jason Ward, an incident that occurred about three-and-a-half years after the murders. Specifically, Bell was impeached with a prior statement in which he alleged that Thompson and some of his associates were supposed to rob Ward, but when Thompson and his partner approached Ward’s car, Thompson’s partner unexpectedly started shooting and Thompson fled without robbing Ward. Additionally, and again over Thompson’s objection, the jury watched a video of Heath’s prior police interview in which he claimed that Thompson was a drug dealer and had purchased a rifle from Russell.
The record reflects that Thompson, along with the State’s witness and two other men, was indicted on charges stemming from the attempted armed robbery of Ward. Thompson eventually pled guilty to criminal attempt to commit armed robbery, aggravated battery, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony.
Because this evidence was used to explain the sequence of events leading up to the crime, notice was not required. OCGA § 24-4-404 (b) (requiring a party to give notice when it intends to seek the admission of extrinsic act evidence). Instead, the evidence is intrinsic evidence because it forms an “integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted.” Edouard,