Murder. Fulton Superior Court. Before Judge McBurney.
Charles H. Frier, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Arthur C. Walton, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.
HUNSTEIN, Justice. All the Justices concur.
Appellant Michael Favors was convicted of murder, burglary, aggravated assault on a peace officer, and other related offenses in connection with the December 2003 shooting death of Theodore Barber. Favors now appeals, contending the trial court erred in admitting certain witness testimony and in sentencing him on certain counts, and claiming that his trial counsel rendered constitutionally ineffective assistance. Though we find no error in the verdicts and no ineffective assistance on the part of trial counsel, we do find error with respect to the trial court's merger of some offenses, and we therefore must vacate and remand to the trial court for proper merger and resentencing.
On December 2, 2003, police officer Heather Davis responded to a 911 call reporting a burglary in progress at a Fulton County apartment complex. Officer Davis arrived in her marked patrol vehicle with emergency lights activated and, after parking and exiting the car, she heard the squeal of tires and saw a burgundy Ford Expedition back out of a parking space, then drive toward her. Driving the SUV was a young male with an afro and gold teeth, who was ultimately identified as Appellant Michael Favors. Officer Davis, in full uniform with her service weapon drawn, yelled at Favors to stop, but he did not, and she was forced to jump out of the way of his oncoming vehicle. Officer Davis and Officer Vernal Sutherland, who had also responded to the burglary call, pursued the vehicle as it sped away and wrecked a short time later. Favors fled on foot into a wooded area, where Officer Sutherland found him hiding and placed him under arrest.
Officer Davis returned to the apartment from which the 911 call had originated to find the door kicked in and a male victim lying on the floor bleeding from a fatal gunshot to the neck. Near the victim's body lay an unused 16-gauge shotgun. Also found at the scene were a .40 caliber shell casing and an unfired .40 caliber bullet. There was a shoe print on the broken door; the print resembled the tread pattern on shoes belonging to Favors.
The burgundy Expedition was determined to have been stolen at gunpoint from its owner a few days prior to the murder. A search of the vehicle uncovered fingerprints matched to Favors as well as a candy wrapper, which bore a fingerprint that was ultimately matched to McCoy.
Witness Taja Glenn, McCoy's girlfriend at the time of the crimes, testified at trial that on the day of the crimes, she and her friend Lakeesha Reese rode with Favors and McCoy in a burgundy Expedition, which McCoy told Glenn they had stolen. The foursome went to a nearby hotel, where they watched television and played video games and prepared to spend the night. Both men had guns with them. Glenn overheard Favors and McCoy talking about a plan to " hit a lick" -- street slang for robbing someone -- and the fact that the person they intended to rob was not supposed to be at home. At some point, Favors and McCoy left the hotel room, telling Glenn and Reese that if they were not back by a certain time, Glenn and Reese should pack up their belongings and leave the hotel. By the following morning, the men had not returned. In a later telephone conversation, McCoy told Glenn that " the lick went bad," and that the victim had been at home with a gun and was shot.
The medical examiner testified that the victim had died from a gunshot wound to the chest.
1. Though Favors has not enumerated the general grounds, we have concluded that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Favors was guilty of all the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Favors contends the trial court erred in permitting Glenn to testify about (a) overhearing Favors and McCoy discussing their plan to " hit a lick" and (b) McCoy's subsequent statement to her that " the lick went bad" and the victim was shot. Favors contends that both his conversation with McCoy and McCoy's later statement were inadmissible hearsay and that, in combination, they violated Favors' rights under the Confrontation Clause, see Bruton v. United States, 391 U.S. 123 (88 S.Ct. 1620, 20 L.Ed.2d 476) (1968), because they were statements by a non-testifying co-defendant implicating Favors in the " lick."
As an initial matter, the statements in question were both properly admitted under the co-conspirator exception to the hearsay rule. See former OCGA § 24-3-5 (once a conspiracy is shown, statements by one co-conspirator during the pendency of the criminal project are admissible against all). The evidence independent of these statements was sufficient to make " a prima facie showing ... of the existence of a corrupt agreement" between Favors and McCoy. Brown v. State, 262 Ga. 223, 225 (2) (c) (416 S.E.2d 508) (1992). Specifically, on the night of the crimes, the pair, both armed with guns, left the hotel room together -- having forewarned their female companions they might not return -- in the vehicle in which Favors subsequently attempted to flee the crime scene. Given this prima facie evidence of a conspiracy between the co-defendants, any statements made by McCoy " during the pendency of the criminal project," former OCGA § 24-3-5, were admissible against Favors. The conversation between Favors and McCoy took place during the planning phase of the crimes, clearly during the pendency of the conspiracy. McCoy's subsequent statement to Glenn was made in the post-crime concealment phase of the conspiracy. See Brooks v. State, 281 Ga. 14 (2) (635 S.E.2d 723) (2006). Contrary to Favors' contention, the fact that Favors had been arrested by the time McCoy made the second statement to Glenn does not ...