Murder. Columbia Superior Court. Before Judge Jolly.
McMillan & Rawlings, Thomas C. Rawlings, Brandi D. Payne, for appellant.
Ashley Wright, District Attorney, Henry W. Syms, Jr., Madonna M. Little, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Christian A. Fuller, Assistant Attorney General, for appellee.
Appellant Nebula McNeely was convicted of two counts of felony murder and other offenses related to shoplifting and the deaths of two individuals arising from an automobile collision. The collision occurred when appellant and her accomplice were fleeing or attempting to elude a police officer after they had been confronted for shoplifting. For the reasons set forth below, we affirm in part with respect to the convictions, but we vacate in part, with respect to the separate sentence imposed for the conviction for felony fleeing or eluding, because we find, for purposes of sentencing, that conviction merged as a matter of law with the convictions for felony murder.
Viewed in the light most favorable to the verdict, the evidence shows appellant's accomplice, Tiara Smith, drove her SUV into an intersection against a red light, causing a deadly automobile collision while speeding away from the scene where Smith and appellant had been involved in shoplifting. Smith was the girlfriend of appellant's son. Appellant asked Smith to drive her to go shopping for a birthday gift. Three months earlier, appellant had been released from incarceration for shoplifting and other offenses, and Smith knew appellant intended to shoplift merchandise on the day in question. Without permission, appellant took along a friend's six-year-old daughter, who was used as a diversion during the shoplifting episode. At Marshall's department store, a loss prevention detective observed the women place various items in a shopping cart. Leaving the cart inside, they then went outside to the parking lot where they reached [296 Ga. 423] into an SUV and dumped items out of a shopping bag. The women returned to the store with the empty bag, placed items previously collected in their cart into the shopping bag, and left the store without paying for them. The store detective had already alerted police, and she and the store manager followed the women out to the parking lot and confronted appellant about the merchandise. Appellant denied the items were stolen and started shoving the detective. Appellant refused the detective's request to go back into the store. Instead, when she saw that Smith and the child had gotten into the SUV, appellant dropped the merchandise and jumped into the SUV, and the women drove away.
A Columbia County Sheriff's motorcycle officer heard a dispatch about the shoplifting and was headed in the direction of the store when he observed an SUV speeding in the opposite direction at 70 miles per hour. After turning around to pursue the SUV and turning on the motorcycle's blue lights and siren, he heard additional information that the getaway car was a dark-colored SUV with a South Carolina license plate. The SUV he was pursuing matched the description of the getaway car. The SUV did not stop or slow down as it went through two intersections, and then collided with another vehicle after running a stop light. Two occupants in the other car were killed upon impact. A third occupant was five months
pregnant, and her unborn child was lost as a result of extensive injuries she sustained in the collision. The young girl in the SUV was not wearing safety restraints, and she also sustained serious injuries in the collision. Appellant was ejected from the SUV upon impact and was taken to the hospital. When interviewed by law enforcement at the hospital, appellant denied going into the store in question.
Both Smith and appellant were indicted. Smith pleaded guilty and testified against appellant at her trial. Smith testified that she saw the motorcycle officer pursuing her and told appellant to put on her seatbelt because she was going to pull over. She further testified that appellant argued with her and demanded that she not stop, and further demanded that she run the light at the intersection where the collision occurred. When interviewed by authorities after the collision, Smith said appellant repeatedly demanded that Smith drive faster to get away from the pursuing officer because she could not afford to get into more trouble. Appellant testified at trial and admitted shoplifting. She also admitted having gotten out of prison about three months before this incident and admitted knowing that violating her parole and probation by shoplifting would send her back to prison. She denied, however, that she encouraged Smith to avoid being pulled over and claimed she told Smith to slow down.
[296 Ga. 424] 1. Pursuant to OCGA § 40-6-395 (a): " It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or audible signal to bring the vehicle to a stop. ..." Relying upon Carter v. State, 249 Ga.App. 354 (5) (548 S.E.2d 102) (2001) (in which no evidence was presented that appellant did anything other than occupy the passenger seat of the vehicle while his accomplice in the crime of hijacking engaged in a high-speed chase with police), appellant argues that the evidence was insufficient for a reasonable finder of fact to find her guilty of violating the terms of this statute because she was not the driver of the vehicle in which she was riding, nor did she have authority to bring the driver's vehicle to a stop. The State's theory regarding this offense, however, is that appellant was a party to this crime by aiding or abetting in it, or by intentionally advising or encouraging Smith to commit the crime. See OCGA § 16-2-20 (b) (3) and (4). It is true, as appellant argues, that to sustain a felony conviction, the testimony of an accomplice must be corroborated. See former OCGA § 24-4-8. We reject appellant's assertion, however, that the evidence of her active participation in the driver's act of fleeing or attempting to elude the law enforcement officer consisted solely of the uncorroborated testimony of Smith, her accomplice to the crime. Evidence connecting the defendant with the crime, in satisfaction of former OCGA § 24-4-8, may be slight and it may be entirely circumstantial. Sutton v. State, 295 Ga. 350, 351-352 (1) (759 S.E.2d 846) (2014). Further, " evidence of the defendant's conduct before and after the crime may give rise to an inference that [s]he participated in the crime." (Citation omitted.) Id. at 352. This rule is applicable to the crime of fleeing or attempting to elude a police vehicle pursuant to OCGA § 40-6-395 (a). See Westmoreland v. State, 287 Ga. 688 (4) (b) (699 S.E.2d 13) (2010); Cooper v. State, 281 Ga.App. 882 (2) (637 S.E.2d 480) (2006).
Appellant testified and admitted shoplifting, and further admitted she had a prior record of shoplifting, that she had only recently been released from prison, and that she knew getting caught the day of these events would be a parole violation that would send her back to prison. The evidence showed appellant avoided detention and questioning by store personnel and that she physically assaulted one of the store employees who confronted her. When appellant saw Smith was about to pull out of the store parking lot, she fled the scene to jump into the car with Smith. When questioned in the hospital [296 Ga. 425] after the collision, appellant denied her ...