Murder. Chatham Superior Court. Before Judge Walmsley.
Amy L. Ihrig, for appellant.
Meg E. Heap, District Attorney, Matthew Breedon, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth M. Haase, Assistant Attorney General, for appellee.
HINES, Presiding Justice. All the Justices concur.
Hines, Presiding Justice.
Levi Jerome Marshall, Jr., appeals from his convictions and sentences for malice murder and making false statements to law enforcement officers, in connection with the death of Alan O'Neal. For the reasons that follow, we affirm.
Construed to support the verdicts, the evidence showed that O'Neal and Carlos Coleman were seated on Coleman's front porch on Dixon Street when two men emerged from along the side of the house [297 Ga. 446] bearing firearms; the two men fired handguns, and O'Neal returned gunfire, but was struck by projectiles and died of multiple gunshot wounds.
Shortly after this incident, police officers responded to a 911 call several miles away, where Marshall reported that he had been shot in the leg while walking down the street. Marshall went to a cousin's house, and asked for help, and the cousin called 911; his cousin told a responding law enforcement officer that he did not hear a gunshot, although another cousin in the house said he heard one gunshot. Marshall was taken to a hospital and treated for a gunshot wound in the leg. After Marshall left the hospital, detectives assigned to O'Neal's murder interviewed him. Initially, he said that he had not been present at Dixon Street but was instead shot near his cousin's home, several miles away. However, he eventually admitted that he was in the neighborhood of the shooting, and had been shot from a passing car while he was in the lane behind Coleman's house; he said that he was alone at the time.
Part of the State's theory of the case was that Marshall acted in concert with another man in coming around the side of Coleman's house. The State presented the testimony of John Bright, who testified that he walked past Coleman's house, spoke to Coleman and O'Neal, and walked past Marshall, who was dribbling a basketball at the corner of Coleman's street. Bright and Marshall exchanged greetings, Marshall then turned around and went back toward a basketball court, and Bright continued across a park; Bright initially described this encounter as " they come up behind me [sic]." He later testified that two other young men were separated from Marshall by approximately 50 yards in the direction in which Marshall turned after encountering Bright, although he could not say that the three men were together; his statement to an investigating detective was that the distance between Marshall and the others was 20 yards. Bright
testified that four to six minutes after his encounter with Marshall, he heard gunshots, saw police cars arriving, and walked back to the area of Coleman's house; there, shortly after the shooting, Bright spoke with Coleman while standing outside the police evidence tape, but he testified that the exchange was nothing more than his inquiry as to what happened, and Coleman's response was that he did not know.
Coleman testified that he and O'Neal were seated outside his home when " people" came around the side of the house; in response to several questions about details such as their clothing, if they had firearms, or said anything, he replied " I can't remember." The State received the trial court's permission to treat Coleman as a hostile witness, and Coleman later testified that one assailant had a white [297 Ga. 447] T-shirt over his face, but he did not see a second assailant; he later testified that he did see a second person. Although he testified that he gave a statement to an investigating detective, he said he could not remember telling him that one assailant had covered his face with his arm, or that the assailants said: " You know what time it is." Coleman also testified that before the shooting, he had played basketball in the nearby park, but could not remember whether he played against Marshall; he also denied that O'Neal had played a dice game and won a significant amount of money. He testified that after the shooting, he retrieved a pistol from the ground near O'Neal, went to a neighbor's house across the street, and then went to another street nearby; he denied returning to his house ...