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Shaw v. State

Supreme Court of Georgia

April 17, 2017

SHAW
v.
THE STATE.

          NAHMIAS, Justice.

         Appellant Antonio Shaw was convicted of the malice murder of Shomari Grier, criminal attempt to commit the murder of Ashley McCord, aggravated assault of Lashaun Brown, and three counts of possession of a firearm during the commission of a felony.[1] Appellant contends that the trial court erred in excluding evidence of a witness's alleged gang affiliation and in not instructing the jury on voluntary manslaughter as a lesser included offense of murder. We affirm.

         1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. Ashley McCord was in an off-and-on relationship with Shelicia Reese, and on the night of December 9-10, 2011, McCord spent the night at Reese's apartment in Atlanta. In the morning, McCord returned home to her girlfriend, Denee Simpson. Simpson caught McCord trying to sneak into the house and told her to go back to where she had spent the night. McCord began driving back to Reese's apartment, calling Reese on the way. The two women started arguing about their relationship, and Reese surreptitiously added Simpson to the call, allowing her to listen in. As McCord drove, she picked up her friend Shomari Grier, who wanted a ride to the mall.

         When McCord and Grier arrived at Reese's apartment, Reese refused to open the door. Reese told McCord that she was on the phone with Reese's mother, so McCord better not hurt her. When McCord promised that she was not there to fight, Reese opened the door and went upstairs to her bedroom. McCord followed Reese while Grier remained downstairs. Upstairs, Reese dropped her phone and McCord realized that Reese's call was with Simpson, not Reese's mother. Reese and McCord began to argue and scuffle on the bed.

         Reese then grabbed her phone and called Lashaun Brown, a friend and coworker who had planned to go to the library with Reese that day. Reese asked Brown to come over now and help get McCord, who weighed about 230 pounds, off of her. Appellant, who also worked with Brown and Reese, then drove Brown and her baby to Reese's apartment.[2] Appellant had a handgun in his car.

         When Appellant and Brown arrived at Reese's apartment, Brown called three times for Reese to let them in the door. During the final call, Brown told Reese that Appellant was with her, and Reese asked for Appellant to help get McCord out of the apartment. Reese then ran downstairs to let in Brown and Appellant. McCord walked downstairs and prepared to leave with Grier. When McCord and Grier approached Reese, Brown, and Appellant, who was standing by the front door, Brown asked McCord why she was beating up Reese. McCord started to leave, but Brown persisted in asking McCord why she was hurting Brown's friend. McCord replied that she did not want to fight, especially while Brown was holding her baby. Grier then whispered to McCord that Appellant had a gun tucked into his waistband, and McCord saw it sticking out. No one else had a gun.

         When McCord and Grier moved to leave the apartment, Brown handed her baby to Reese and then punched McCord in the side of her head. McCord and Brown scuffled out the door onto the front porch. No more punches were thrown, and McCord did not hurt Brown; McCord just put her weight on Brown. Reese stayed inside the doorway with Brown's baby but poked her head out to watch what was happening. Appellant and Grier stood on the front steps also watching the fight. Appellant moved to intervene, and McCord heard him say, "I'm fixing to blow that b***h's brains out." Grier told Appellant not to get involved because it was only girls fighting and it was "one-on-one."

         Reese then saw Appellant pull out a gun and shoot Grier. Reese jumped back and shut the door, but watched through a window as Grier grabbed his arm and ran down the street. Appellant continued to fire shots at Grier until Grier collapsed in the street a short distance away. Appellant then turned toward the tussling women and shot at McCord. McCord begged Appellant not to kill her, but after pausing to listen to her plea, he continued to shoot, hitting her a total of four times. Brown jumped up, then realized that she had been hit twice by bullets that passed through McCord. She shouted at Appellant, "Bro, you shot me!"

         Grier died on the street. Forensic evidence showed that he had been shot four times from a distance of at least three feet. The fatal shot passed through his heart and lung; the other three shots struck his arms. Appellant helped Brown to his car and drove her to Grady Memorial Hospital. McCord lay on the ground until Brown left, calling for Grier, then crawled to her vehicle and drove to another hospital. A neighbor called the police after hearing the gunshots.

         Using Appellant's phone, Brown called Reese from the hospital and asked Reese to bring her baby to Grady. Reese then called Eric Evans, her boyfriend and Appellant's brother-in-law, and said, "[Appellant] just shot these people over here." Evans picked up Reese and drove her and Brown's baby to Grady. At the hospital, Brown told Evans that she had been shot in a drive-by shooting. As Reese and Evans were leaving, Appellant, who had been briefly detained by police at the hospital but then released, told Reese that he would follow them to the house of Reese's sister, Sequanna Holmes, where Evans was dropping off Reese.

         When they arrived, Holmes met them and asked what had happened. Appellant, who appeared "shaken up" and "nervous, " said that he had "unloaded" on Grier and McCord, shooting about 19 times. Appellant said that he had been shot at before and felt that it was "him or the man, " so he was not going to take any chances when he saw Grier's hand reaching for something under Grier's shirt. Appellant showed them a 9mm gun hidden in the back seat of his car underneath the baby seat. He explained that he had distracted the police when they searched his car at the hospital by opening his trunk, so they never searched around the baby seat. Appellant also told Holmes, Evans, and Reese that he washed his hands inside the hospital so they would not contain gunshot residue, although the police then did not test his hands. Later, Appellant told Brown that his uncle helped him to dispose of the gun.

         Meanwhile, McCord picked out Appellant in a photographic lineup shown to her in the hospital, and she identified him as the shooter then and at trial. At Reese's apartment, investigators recovered two metal bullet jackets, several metal jacket fragments, and nine 9mm shell casings, all near the porch and walkway, with one casing just inside the apartment door. A 9mm bullet was removed from Grier's body. Ballistics analysis revealed that the bullet, metal jackets, and two of the metal jacket fragments all were fired from the same gun. The shell casings were also all fired from the same gun, although there was no way to determine whether the gun that fired the casings was the same gun that fired the bullet, metal jackets, and fragments.

         At trial, Appellant testified as follows. He drove Brown and her baby to Reese's apartment, where he got out of the car and handed the baby to Reese at the front door while Brown got her baby bags out of the back seat. He then drove away while Brown was on the front steps with her bags and Reese was inside with the baby. A few minutes later, Appellant called Brown to ask when she wanted to be picked up, but Reese answered the phone saying that Brown had been shot. Appellant returned to the apartment and saw Brown sitting on the front steps, so he helped her into his car and drove to Grady. After allowing the police to search his car at the hospital, he drove home. Appellant claimed that he saw no one other than Reese and Brown at Reese's apartment.

         When Reese and Brown first spoke to the police, their stories tracked Appellant's account, including never mentioning McCord or Grier. Reese initially said that a black car with tinted windows drove by her apartment and shot at Brown out of a cracked window. Reese was indicted with Appellant, but she negotiated a plea agreement under which she agreed to plead guilty to one count of aggravated assault and one count of making a false statement and to testify truthfully at Appellant's trial in exchange for the dismissal of the other charges.[3] Reese testified that Appellant was the ...


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