Willis v. StateWillis v. State
Stephen Willis was convicted along with four co-defendants of crimes arising from the shooting death of Nicholas Hagood.1 On
We conclude that the evidence was sufficient to support Willis‘s convictions. Further, the failure to give an accomplice-corroboration jury instruction was not plain error, because even assuming the instruction should have been given, the failure to give it was not likely to have affected the outcome of the trial in light of the
1. The evidence at trial showed the following. On April 16, 2014, just after 12:30 p.m., Rayshon Smith was robbed at gunpoint. Smith was outside his cousins’ apartment building in Austell, in Cobb County, when he noticed a car driving past slowly. The car was a silver or gray Ford Taurus with tinted windows, and Smith could see four men inside. Smith then noticed two men walking towards him. One of them came right up to Smith, pointed a gun at him, and went through his pockets while looking him in the eye. The man took Smith‘s wallet, phone, and keys. The other man аlso had a gun but did not come as close.
After the men left, Smith went into the apartment building and called the police. He gave the police the number of his phone that was stolen. Later, Smith identified Willis‘s co-defendant Jeremy Southern in a photo array as the man who had been closest to him during the robbery.
About a half hour later, at around 1:00 p.m., Joseph James was at home in his apartment in Fulton County, not far from where Smith was robbed. James was looking out the window into the parking lot when he noticed two cars pulling up. One of the cars, which was driven by Hagood, pulled into a parking space. The other сar wedged behind it. When Hagood got out of the car, he seemed “out of place” and “slightly disoriented.” James saw Hagood and a man with dreadlocks standing next to the car that Hagood had been driving, while a third man remained in that car. Four or five men were in the other car. As James watched, Hagood appeared to check his pockets, and then appeared to mouth “I don‘t have anything” or “I don‘t have it” to the man with dreadlocks. The man with dreadlocks appeared to “check” Hagood, “like trying to figure out
James called 911 at 1:16 p.m. Later, when shown photo arrays, James identified Southern as the man with the gun and another of Willis‘s co-defendants, Tavius Bates, as the man with dreadlocks who had been speaking to Hagood.2
Detective Scott Demeester, the lead investigator on the case, arrived at the scene at around 1:45 p.m. Detective Demeester contacted Hagood‘s wifе, who told him that Hagood normally would have a cell phone and a car, neither of which was found at the crime scene. Hagood‘s wife gave the detective Hagood‘s cell-phone number and the tag number for his white Toyota Corolla. Detective Demeester put out alerts for both the phone and the car.
The records from Hagood‘s phone showed that after the shooting, at 1:29 p.m., someone sent a text message to Hagood‘s phone. But that message was not received until 3:10 p.m., indicating that the phone was powered off or otherwise disconnected in the interim. When Hagood‘s phone finally received the message, it “pinged” off a cell tower in the area of an apartment complex on Kelly Lake Road in Decatur. The aunt of one of Willis‘s co-defendants, Octavius Jordan, lived in that apartment complex. Jordan himself was living at a nearby hotel, and Southern lived in the area too. A maintenance man from the Kelly Lake Road apartment complex testified that he had seen Hagood‘s white Toyota Corolla and the defendants’ silver Ford Taurus parked at that
The records from Smith‘s cell phone showed that someone used it several hours after it was stolen to call Metro PCS customer service to unloсk it. After it was unlocked, the phone was used to place and receive calls and text messages to and from people the phone had never been used to contact before it was stolen. The new contacts included Jordan‘s girlfriend, Willis, Southern, and a phone number belonging to the mother of the fourth co-defendant, Demetrius Fortson, who often used his mother‘s phone. Police searched the phone of another of the new contacts in Smith‘s phone, Dionte Wooten, and found that Smith‘s number was saved in Wooten‘s phone under Jordan‘s nickname, “Tay Tay.”
Jordan and Bates were arrеsted and interviewed. Portions of their statements were played for the jury. In Jordan‘s interview, he admitted that he was present at the armed robbery of Smith, that he took Smith‘s phone (and later sold it), and that he then drove to another location where a “white man” was robbed. Bates, in his
In the portion of Jordan‘s interview that the jury did not hear, Jordan identified Willis and the other co-defendants. Using that information, Detective Demeester obtained a search warrant for the cell-phone records of Willis, Southern, Bates, and Jordan, as well as of Fortson‘s mother. From those records, detectives put together a timeline of the defendants’ whereabouts and phone activities on the day of the crimes.
The cell-phone evidence showed the following. On the morning of the crimes, Willis, Jordan, and Southern were in contact with each other. Jordan and Southern started out in the area of Decatur where they both lived, and Willis started out somewhere west of Stone Mountain. Shоrtly after 10:30 a.m., Jordan and Southern drove north on I-285 toward the Stone Mountain Highway, then east on the highway toward Stone Mountain. Jordan and Southern called
A short time later, just after Smith was robbed, Jordаn received a call at 12:37 p.m., and Willis made and received calls at 12:43 p.m. and 12:47 p.m., all in the area of the robbery. Southern‘s phone pinged off a cell tower in the same area at the same time. Likewise, minutes before Hagood was killed, Willis, Southern, and Jordan all made calls near the murder scene.
The phones went silent for a time after the murder. Then at 1:47 p.m., Willis made a call near Fortson‘s home. The other four defendants’ phones all pinged off the same cell tower around that time. At 2:11 p.m., Southern called Willis from near Southern‘s home. All five defendants’ phones pinged off cell towers in the same
Detective Demeester testified that in the six-week period for which he reviewed Willis‘s phone records, the day of the crime was the only time Willis‘s phone pinged near either Fortson‘s home or Jordan‘s and Southern‘s homes.
Willis was arrested at the home of his girlfriend in Austell. He was found hiding in a bedroom closet. Police seized his cell phone; Willis later denied having the cell-phone number that was associated with that phone. He also denied knowing Jordan, although one of the contacts in his phone was listed under Jordan‘s niсkname with the phone number of Jordan‘s girlfriend.
None of the defendants testified at trial.
2. Willis contends that the evidence was not sufficient to sustain his convictions. Relying on
A conviction can rest on circumstantial evidence alone if that evidence “exclude[s] every other reasonable hypothesis save that of the guilt of the accused.”
Here, there was sufficient evidence for the jury to find both that Willis‘s co-defendants directly committed the crimes and that Willis was guilty as a party to the crimes. To begin with, as Willis concedes, there was direct evidence that his co-defendants committed the crimes. A witness to the murder, James, identified Southern as the shooter and Bates as the second person who confronted Hagood.
There was also sufficient evidence from which the jury could find that Willis was part of the group that committed the crimes. Both eyewitnesses, James and Smith, saw at least four men at the respective crime scenes. Willis‘s cell-phone records offered strong suрport that he was one of those men. The phone records showed not only that Willis was near the location of both crimes at the time they were committed, but also that he moved around the city with his co-defendants after the crimes, and that he was in communication with them throughout the day. Willis called or texted with Southern and Jordan in the morning as the latter two drove toward Stone Mountain, where Willis started his day. Later, Willis‘s phone was used in the area where Smith was robbed, and shortly thereafter, it was used again near where Hagood was murdered. Still later, his phone was active near Fortson‘s home, and then near Southern‘s and Jordan‘s homes—as were the phones of all his co-defendants. Detective Demeester testified that the day of the crimes was the only day in a six-week span in which Willis‘s phone pinged near Fortson‘s, Southern‘s, or Jordan‘s homes. And when Willis was
This evidence authorized the jury to reject as unreasonable the hypotheses that Willis urges on appeal—that he was merely present at the scene of Hagood‘s murder, and that when his phone pinged near the Smith robbery, he was actually at his girlfriend‘s home nearby. See
3. Willis contends that the trial court erred by failing to give a jury instruction about the statutory requirement of accomplice corroboration. Under
(a) The trial court gave several jury instructions that related to the co-defendants’ out-of-court statements. First, the court
(b) Willis did not object at trial to the failure to give an accomplice-corroboration instruction, so we review the claim for plain error. See Harris v. State, 313 Ga. 872, 879 (3) (874 SE2d 73) (2022). To show plain error, an appellant must show that (1) the alleged error was not affirmatively waived, (2) it was obvious beyond reasonable dispute, and (3) it affected the appellant‘s substantial rights, which ordinarily means showing that it affected the outcome of the trial. See Hawkins v. State, 304 Ga. 299, 302 (3) (818 SE2d 513) (2018). Finally, if those three prongs are satisfied, an appellate
Pretermitting whether it was error for the trial court not to give an accomplice-corroboration jury instruction in this case, Willis has not shown that the failure to give the instruction likely affected the outcome of his trial. As we recounted in Division 2, ample evidence of Willis‘s guilt did not come from Jordan‘s and Bates‘s statements, including eyewitnesses identifying his co-defendants as the direct perpetrators of the crimes, and cell-phone records placing Willis at the crime scenes and underscoring that he and his co-defendants were in communication with each other and in each other‘s presence throughout the day. The evidence against him did not rely entirely, or even significantly, on the statements from Jordan and Bates. See Payne v. State, 314 Ga. 322, 326 (1) (877 SE2d 202) (2022) (failure to give accomplice-corroboration instruction did not likely affeсt outcome of trial in light of significant evidence of guilt other than accomplice testimony); Hawkins, 304 Ga. at 303 (3)
4. Willis contends that his trial counsel rendered constitutionally ineffective assistance in a number of ways.
To succeed on a claim of ineffective assistance, a defendant must establish both that his counsel‘s performance was deficient and that he was prejudiced as a result of that deficient performance. See Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022) (citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984)). To establish deficient performance, a defendant must establish that counsel “performed his duties in an objectively unreasonable way, considering аll the circumstances and in the light of prevailing professional norms.” Id. (citation and punctuation omitted). To overcome the “strong presumption” that counsel performed reasonably, the defendant must show that “no reasonable lawyer would have done what his lawyer did, or would
If the defendant fails to satisfy either part of the Strickland test, his claim fails, and we need not address the other part. Washington, 313 Ga. at 773 (3). Finally, when reviewing ineffective-assistance claims, we accept the trial court‘s factual findings unless clearly erroneous, but we independently apply legal principles to the facts. See Lyons v. State, 309 Ga. 15, 25 (8) (843 SE2d 825) (2020).
(a) Willis first contends that trial counsel was ineffective for failing to limit the jury‘s access to State‘s Exhibit 115, a certified copy of Willis‘s 2013 felony conviction (by guilty plea) for possession of cocaine. The State introduced the exhibit to establish that Willis was a previously convicted felon. But the exhibit also showed Willis‘s misdemeanor convictions from the same incident for possession of marijuana and obstructing a law enforcement officer. The narrative of the incident described Willis jumping off a second-floor balcony to avoid arrest. In addition, the exhibit showed that three days before the cocaine possession incident, Willis had an arrest warrant issued for battery and obstructing a 911 call, and that hе had had his bond revoked as a result. Willis argues that counsel should have stipulated to his status as a convicted felon to prevent the jury from seeing the full exhibit.
Even assuming counsel‘s performance was deficient for the reasons Willis gives, Willis has failed to establish prejudice. A defendant may be prejudiced by the admission of a prior conviction into evidence when the “prior conviction is of the nature likely to
(b) In a related enumeration, Willis сontends that his trial counsel was ineffective for failing to request a jury instruction limiting the jury‘s use of Exhibit 115 to establishing Willis‘s status as a convicted felon (and for failing to object when the trial court‘s jury charge did not include that limiting instruction). But Willis has not shown a reasonable probability that the result of his trial would have been different if the trial court had given that instruction. As we explained in Division (4) (a), the evidence against Willis was strong, and the information in Exhibit 115 was relatively mild compared to the crimes with which he was charged. So the jury
(c) Finally, Willis contends his trial counsel was ineffective for failing to move to suppress search warrant SW-007220, which authorized the seizure of his cell-phone records. Willis contends that the warrant, which he introduced into evidence at the hearing on the motion for new trial, was not supported by probable cause because it rested on the uncorroborated statement of his co-defendant, Jordan.
A magistrate may issue a search warrant upon the sworn application of a law enforcement officer that (1) sets forth “facts sufficient to show probable cause that a crime is being committed or has been committed” and (2) “particularly describes the place or
Here, Willis has not met the high burden required to overturn the magistrate‘s probable-cause determination, or, by extension, to suppress warrant SW-007220. See Johnson, 310 Ga. at 694 (4) (b). In the probable-cause affidavit supporting the warrant application, Detective Demeester described how he identified Jordan as the possessor of Hagood‘s stolen cell phone, and how Jordan, in his interview, identified Willis and the other co-defendants, admitted that he was the driver of the group‘s car at the robbery of Smith, and admitted that he was the driver of one of the group‘s cars when Hagood was killed. In other words, Jordan, a named informant, gave a statement against his penal interest and based on his personal knowledge. That statement by itself provided a substantial basis for a magistrate to find probable cause. See Graddy, 277 Ga. at 766 (1). Moreover, Jordan‘s statement was not the only evidence supporting the warrant application. The affidavit also attested that Willis‘s number appeared in Smith‘s stolen cell phone, which tended to confirm that, аt the very least, he knew the person who had stolen
Because the magistrate had a “substantial basis” for concluding that probable cause existed, a motion to suppress would have been meritless. And failing to file a meritless motion to suppress is not deficient performance. See, e.g., Keller v. State, 308 Ga. 492, 499 (2) (c) (842 SE2d 22) (2020). So Willis‘s final claim of ineffective assistance fails.
Judgment affirmed. All the Justices concur, except Peterson, P. J., not participating.