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Thomas v. State

Supreme Court of Georgia

January 23, 2017

THOMAS
v.
THE STATE. NIXON
v.
THE STATE.

          HUNSTEIN, Justice.

         Appellants Julius Thomas and Desmond Nixon were tried jointly and convicted of murder and related offenses in connection with a crime spree that took place over three days in January 2013.[1] Both men now appeal, arguing that the evidence was insufficient to support their convictions and averring claims of ineffective assistance of counsel. Though we find no merit to the ineffective assistance claims raised by both Appellants, we do find error with regard to Nixon's sentences for three counts of possession of a firearm during the commission of a felony. See Hulett v. State, 296 Ga. 49 (2) (766 S.E.2d 1) (2014) (merger error, even if not raised by the parties, may be addressed by appellate court sua sponte). Therefore, we must vacate those aspects of Nixon's sentences. Further, though the evidence is sufficient to support all of Nixon's criminal convictions and sentences, as well as Thomas' convictions and sentences as they relate to Bandera, we reverse Thomas' conviction and sentence for the armed robbery and set aside his guilty verdicts for the aggravated assaults of B.W. based upon insufficient evidence proving he was a party to these crimes.

         Sufficiency of the Evidence

         1. Both Thomas and Nixon argue that the evidence presented at their joint trial was insufficient to support their convictions. Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established that Julius Thomas, Desmond "Philly" Nixon and Ishmael "Smurf" Carter were close friends and members of a rap group known as B.G.M. Witnesses recalled that Thomas and Nixon were so close that they would periodically live in the same house and answer incoming calls on the other's cell phone. In January 2013, B.W., Marcelino Rodriguez and Rosendo Bandera were victimized as follows:

         B.W. Rape and Armed Robbery

         On January 7, 2013, B.W., who was working at a China Express in Clayton County, Georgia was delivering her last order of the night to 293 Roxbury Drive, which is located approximately one block from Thomas' then-residence. Upon B.W.'s arrival at the house, a man she later identified as Carter was standing outside near the driveway. Carter approached and asked to sit inside the vehicle until his friend brought out money to pay for the order. B.W. allowed him to sit in the front passenger's seat and, despite having flirted with her on the phone earlier in the evening when he was placing the delivery order, Carter was now quiet and texting on a phone.

         Eventually, another man came outside and spoke with Carter about paying for the meal, leaving the front passenger door open. The men returned to the driver's side door where B.W. was still seated. Shortly thereafter, she felt a gun against her right side. She turned and faced a third man, later identified as Nixon, who demanded money from her. B.W. said she did not have any money, at which point Nixon took her cell phone and told her to remove her clothes. She complied. Nixon proceeded to rape her in the front seat of the car at gun point while the other two men blocked the driver's side door. The group left B.W. in the car and headed back into the house, claiming that they were going to prepare the house to kill B.W., but the men never returned.

         B.W. later identified Nixon and Carter from photographic line-ups as two of the men involved in her assault, but she was unable to identify Thomas as the third man. Phone records introduced at trial showed that Thomas' cell phone was used to place the delivery order with China Express the night of the crimes. Law enforcement also located Nixon's finger prints in the car where B.W. was raped. Finally, after B.W. replaced her cell phone and re-activated her old phone number, she began receiving phone calls for "Philly" and "Smurf." In fact, Nixon's girlfriend testified at trial that, after the night B.W. was raped, she would reach Nixon by calling the phone number belonging to B.W.'s stolen cell phone.

         Marcelino Rodriguez Armed Robbery

         On January 22, 2013, around 11:00 p.m., Marcelino Rodriguez was walking on Old Dixie Highway in Clayton County, Georgia, when a man walked up to him, held a gun to Rodriguez's forehead, and demanded money. Rodriguez handed over his wallet and cell phone. He then saw a second person get out of a green Ford Escort. Rodriguez removed his jacket and threw it at the armed man in an attempt to distract him, but the man moved out of the way and hit Rodriguez over the head with the gun, causing a half inch laceration to the base of Rodriguez's skull. Rodriguez later identified Nixon in a photographic lineup as the man who pulled the gun on him, but he could not identify the driver of the Ford Escort.

         Bandera Murder

         On January 24, 2013, Rosendo Bandera was working as a taxi cab driver in Clayton County, Georgia. Bandera's last customer testified at trial that, as he dropped her off in Morrow around 9:45 p.m., he mentioned he had two other fares waiting to be picked up. Cell phone records show that calls from both Thomas' cell phone and Rodriguez's stolen cell phone were placed to Bandera on the night of the murder; Bandera's driver's log also included entries with Thomas' cell phone number. Further, text messages between Thomas' and Rodriguez's phones showed two people discussing the robbery of the taxi driver. At trial, Thomas' girlfriend confirmed that he sent her text messages from Rodriguez's cell phone throughout the day of Bandera's murder.

         Around 10:00 p.m. on January 24, surveillance footage showed Bandera picking a customer up from a CVS parking lot. The CVS was very close to Thomas' house where he and Nixon were seen together earlier in the evening. Cell tower records show that the cell phone activity from Thomas' phone and Rodriguez's stolen phone occurred near this CVS. At 10:25 p.m., Bandera was found dead of a gunshot wound to the head in his taxi cab, which was located in a neighborhood a couple miles from the CVS. After the murder, Nixon warned Thomas' girlfriend not to call him "Philly" anymore; Thomas fled the State after telling his girlfriend that he needed to leave Georgia.

         Later in the investigation, officers were informed by two different jail inmates (Brandon Jones and Bryant Douglas) that Nixon had bragged to them about his role in the crime spree. At trial, both Jones and Douglas testified to the numerous inculpatory statements made by Nixon in their presence.

         Nixon argues that the evidence relied upon by the State was insufficient to support his convictions and sentences. Namely, Nixon alleges that the testimony of the jailhouse informants was unreliable and wholly circumstantial and that, without their testimony, the remainder of the ...


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