748 S.E.2d 400 | Ga. | 2013
Anthony Threatt was tried by a Monroe County jury and convicted of felony murder in the commission of an armed robbery, unlawful possession of a firearm by a convicted felon, and unlawful possession of a firearm during the commission of a felony, all in connection with the fatal shooting of Robert Gresham. Threatt appeals, contending only that the evidence is insufficient to sustain his convictions. We see no problem with the legal sufficiency of the evidence, but we find that the trial court imposed a sentence that the law does not allow for unlawful possession of a firearm during the commission of a felony. Accordingly, we vacate that portion of the sentence, remand for resentencing, and otherwise affirm the judgment below.
1. Threatt contends that the evidence is legally insufficient to sustain his convictions for felony murder and unlawful possession of a firearm during the commission of a crime.
Gresham worked in a shop behind his home, where he repaired automobiles and sometimes dealt marijuana. That morning, he was visited by a customer, who spoke with Gresham and then saw him walk behind the shop. As the customer waited for Gresham to return, he saw two men emerge from behind a nearby barbeque pit, each within a few minutes of the other. According to the customer, the first man to emerge was six feet or more in height, the second man was several inches shorter, and each man wore dark clothing, had covered his face, and carried a handgun. The customer then heard a gunshot, and he quickly left. Gresham’s girlfriend also heard a gunshot, and she found Gresham, lying on the ground and bleeding. Gresham had sustained six gunshot wounds, two inflicted with a .22 caliber gun, and four inflicted with a .32 caliber gun. He later died of his wounds. His pockets — in which he usually kept cash — were turned inside out and empty. And a hole in the ground — where Gresham usually kept marijuana and additional cash — also was empty. Nearby, investigators found a camouflage and partially black cap, which later was identified as one worn by Davis.
Soon after the shooting, Davis called Wyche, and according to Wyche, asked him to pick up Davis and Threatt. Wyche agreed to do so, and when he did, Threatt said that “we shot him.” Later that
In Georgia, a felony conviction cannot be sustained solely by the uncorroborated testimony of an accomplice. See former OCGA § 24-4-8.
Even if Wyche were an accomplice of Threatt — a doubtful proposition
2. Although Threatt does not complain of his sentence for unlawful possession of a firearm during the commission of a felony, we find that the trial court imposed a sentence for that crime that the law does not permit. More specifically, the trial court sentenced Threatt to imprisonment for fifteen years for that crime, but OCGA § 16-11-106 — the statute of which Threatt was convicted of violating — only authorizes imprisonment for five or ten years, depending on whether the defendant is a recidivist.
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
The crimes were committed on November 28, 2009. Threatt was indicted on August 11, 2010 and charged with malice murder, three counts of felony murder, and one count each of armed robbery, aggravated assault, unlawful possession of a firearm by a convicted felon, and unlawful possession of a firearm during the commission of a felony. His trial commenced on December 5, 2011, and the jury returned its verdict eight days later, finding Threatt guilty on all counts. Threatt was sentenced to imprisonment for life without parole for felony murder in the commission of an armed robbery, a consecutive term of imprisonment for five years for unlawful possession of a firearm by a convicted felon, and a consecutive term of imprisonment for fifteen years for unlawful possession of a firearm during the commission of a felony. The trial court should have sentenced Threatt for malice murder, rather than for felony murder, Powell v. State, 289 Ga. 901, 902 (717 SE2d 215) (2011), but that sentencing error does not harm Threatt, and he understandably does not complain about it on appeal. Ellis v. State, 292 Ga. 276, 277, n. 1 (736 SE2d 412) (2013). The trial court correctly did not sentence Threatt for the other counts of felony murder, and it correctly merged the armed robbery and aggravated assault with the felony murder for which Threatt was sentenced. Malcolm v. State, 263 Ga. 369, 371-372 (4)-(5) (434 SE2d 479) (1993). See also Thomas v. State, 289 Ga. 877, 880 (3) (717 SE2d 187) (2011). Threatt timely filed a motion for new trial on December 29, 2011, and he amended it on September 19,2012. The trial court denied his motion on December 20,2012. Threatt then timely filed his notice of appeal on January 8,2013, and the case was docketed in this Court for the April 2013 term and submitted for decision on the briefs.
Threatt does not dispute the legal sufficiency of the evidence as to unlawful possession of a firearm by a convicted felon. We independently have reviewed the evidence that pertains to that crime, and we are satisfied that the evidence is sufficient to sustain that conviction. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). Threatt does complain, however, that the evidence is insufficient to sustain any conviction for malice murder, felony murder in the commission of an aggravated assault, felony murder in the commission of unlawful possession of a firearm by a convicted felon, armed robbery, and aggravated assault. But Threatt was not sentenced for any of these crimes, and no judgment of conviction as to these crimes was entered against him, inasmuch as the trial court found that the verdicts on these counts were vacated by operation of law or that the crimes merged with the other crimes for which Threatt was sentenced. See note 1, supra. Accordingly, his claims that the evidence is
There was evidence that Threatt is considerably shorter than Davis and Wyche, both of whom are more than six feet in height. Davis’s stepsister testified at trial that the third man was shorter than Davis and Wyche.
Wyche said that he tried to talk them out of it in person and later on the telephone. Phone records admitted at trial confirm that Wyche called Davis twice soon after Davis’s stepsister dropped the men off.
Davis’s stepsister saw Davis and the shorter man walk away from Wyche soon after she dropped them off.
Evidence at trial established that the cap found at the scene had Davis’s DNA in it.
That was disproved by phone records admitted at trial.
His signature did not appear in the jail visitation log.
On the night before the shooting, Davis and Threatt were seen together, and they telephoned one another several times. Phone records also show that they called one another in the hours following the shooting.
This case was tried under the old Evidence Code, see Ga. L. 2011, p. 99, § 101, and for that reason, we cite former OCGA § 24-4-8. We note, however, that the provisions of former OCGA § 24-4-8 were carried forward into the new Evidence Code and now can be found at OCGA § 24-14-8.
Even if Wyche was an accessory after the fact — when he picked up Davis and Threatt after the shooting — the evidence did not demand a finding that he was a party to any of the crimes of which Threatt was convicted. See Givens v. State, 273 Ga. 818, 820 (1) (546 SE2d 509) (2001). Indeed, there was little, if any, evidence that Wyche shared any intent to participate in those crimes. See Moore v. State, 288 Ga. 187, 189 (1) (702 SE2d 176) (2010); Christian v. State,
The trial court may have thought that Threatt had been convicted of violating OCGA § 16-11-133 (b), which authorizes a sentence up to fifteen years for unlawful possession of a firearm by certain convicted felons during the commission of a crime. But that crime only concerns persons who have been convicted of certain enumerated felonies, and the felony of which Threatt had previously been convicted — burglary — is not among them. Moreover, the indictment makes clear that Threatt was charged in this case with violating OCGA § 16-11-106, not OCGA § 16-11-133 (b).