THORPE v. THE STATE.
S18A0732
Supreme Court of Georgia
August 20, 2018
304 Ga. 266
HUNSTEIN, Justice.
FINAL COPY
Viewed in the light most favorable to the jury‘s verdict, the evidence adduced at trial established that, on June 21, 2010, Justin Evans arranged to buy marijuana from Thorpe and his co-indictee Gary Mosley.2 When the three met, however, Evans robbed Mosley and Thorpe.
Later that day, Mosley and Darelle Phillips learned Evans resided at an apartment complex in Union City, Georgia, after which Mosley called Thorpe to come to the complex for assistance. Thorpe arrived at the apartment complex with Santino Butler and Paul Hill. Later, as Evans drove past the group on his way into the apartment complex, Mosley, armed with a .40 caliber pistol, shot at the moving car; the bullet struck Evans in the ankle. Shortly thereafter, Evans crashed the car, got out of the driver‘s seat and attempted to run away, but could only manage to limp. Thorpe pursued Evans, cornered him near one of the buildings in the apartment complex, and, also using a .40 caliber gun, shot Evans in the leg three times; one of the shots severed Evans’ femoral artery, which later caused his death. Ballistics evidence confirmed that two different
Thorpe made numerous inculpatory statements both to witnesses and to co-conspirators regarding his participation in the drug transaction with Evans, as well as his planning of and participation in the subsequent shooting. Thorpe fled the State after the murder and was eventually arrested in Ohio. He testified in his own defense, admitting that he was present at the scene but denying involvement in the shooting.
1. Though not enumerated by Thorpe, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Thorpe was guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Thorpe alleges two instances of ineffective assistance of counsel. In order to establish ineffective assistance of counsel, a defendant must show that his counsel‘s performance was professionally deficient and that, but for
(a) Witness impeachment
Thorpe first alleges that trial counsel was ineffective for failing to impeach Paul Hill with evidence of his prior felony convictions, arguing that discrediting this witness was crucial to the defense‘s case. Thorpe did not, however,
(b) Mosley‘s hearsay statements
At trial, many witnesses testified to statements made by co-indictee Mosley regarding Thorpe‘s participation in the shooting. Specifically, prior to the shooting, Phillips testified that, as Mosley watched Thorpe chase after Evans, he yelled out, “Get him T, that‘s the man right there, get him.” Then, as the second round of shots was fired, Mosley informed Hill, Butler, and Phillips “that‘s T shooting.” Thorpe alleges that counsel was ineffective for failing to object to these statements because the State failed to show the existence of a conspiracy and that Mosley made these statements in furtherance of a conspiracy pursuant to
3. Next, Thorpe contends that the trial court erred when it allowed the State to recall a witness for the purposes of making an in-court identification, arguing that the circumstances of the identification were improperly suggestive and violated his right to due process. We disagree.
“A trial judge has broad discretion to allow the recall of a witness.” Ivey v. State, 277 Ga. 875, 877 (4) (a) (596 SE2d 612) (2004). The record shows that Syneikia Brittian, an eyewitness to the shooting, testified that, on the day of the shooting, she was looking out the window of her first floor apartment waiting for Evans to return her car. Shortly after seeing Evans drive into the apartment
During a brief recess immediately after Brittian‘s testimony, she approached an investigator and informed him that she recognized Thorpe as the person she saw chasing the victim. The State requested to recall Brittian for the purpose of identifying Thorpe, to which Thorpe objected, arguing that an in-court identification would be unduly suggestive and highly prejudicial under the circumstances. After hearing arguments from the parties, the court allowed the in-court identification. Brittian identified Thorpe as the person she saw chasing Evans, explaining, “As I looked in [Thorpe‘s] face, I could put the white t-shirt on him. And it just came back to me.” We find no abuse of discretion in the court allowing the recall of this witness. See Lawton v. State, 281 Ga. 459 (2) (640 SE2d 14) (2007).
Thorpe‘s claim that Brittian‘s in-court identification was improperly
pretrial identification procedures occur beyond the immediate supervision of the court, the likelihood of misidentification in such cases increases, and courts have required that pretrial identification procedures comport with certain minimum constitutional requirements in order to insure fairness. See Whitebread, Criminal Procedure 353 (1980). These extra safeguards are not, however, applicable to [a witness‘s] in-court identification of [a defendant]. Rather, [the witness‘s] testimony is subject to the same rules of evidence, witness credibility, and cross-examination as all testimony in a criminal trial.
Ralston, 251 Ga. at 683. Here, defense counsel conducted a thorough and sifting cross-examination of Brittian in an attempt to discredit her identification, and “the jury was aware that [Brittian] had the opportunity to see [Thorpe] in the courtroom and could consider this fact when determining how much credibility to give [Brittian‘s] testimony.” Lawton, 281 Ga. at 462.
4. Finally, the State introduced evidence recovered by law enforcement during a search of co-indictee Mosley‘s home, including marijuana, baggies, and a digital scale. Thorpe objected to the introduction of the evidence, arguing that
“Decisions regarding relevance are committed to the sound discretion of the trial court.” Smith v. State, 299 Ga. 424, 429 (788 SE2d 433) (2016).
Judgment affirmed. Hines, C. J., Melton, P. J., Benham, Nahmias, Blackwell, Boggs, and Peterson, JJ., concur.
Decided August 20, 2018.
Murder. Fulton Superior Court. Before Judge McBurney.
Gerald A. Griggs, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, David K. Getachew-Smith, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew D. O‘Brien, Assistant Attorney General, for appellee.
Notes
Thorpe was tried alone beginning on October 7, 2013. The jury returned its verdict on October 14, 2013, acquitting Thorpe of malice murder but finding him guilty of all remaining counts. The trial court sentenced Thorpe to life for felony murder (Count 2), ten years consecutive for the drug conspiracy charge (Count 6), and five years consecutive for the weapons charge (Count 7). The remaining counts were either vacated by operation of law or merged for sentencing purposes.
Thorpe filed a motion for new trial on October 22, 2013, and subsequently amended it through new counsel on June 18, 2015. After a hearing, the trial court denied the motion as amended on September 30, 2015. Appellant filed a notice of appeal to the Court of Appeals on October 6, 2015, and the case was docketed in the Court of Appeals on December 14, 2017; the case was subsequently transferred to this Court, docketed to the April 2018 term, and submitted for a decision on the briefs.