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Battle v. State

Supreme Court of Georgia

August 14, 2017

BATTLE
v.
THE STATE. CARTER
v.
THE STATE.

          HINES, Chief Justice.

         Co-defendants Marcus Battle and Jacobey Carter appeal their convictions and sentences for malice murder and felony murder, respectively, and multiple counts of aggravated assault with a deadly weapon, aggravated battery, and possession of a firearm during the commission of a felony, all in connection with the fatal shooting of Kenneth Roberts and the wounding or assault with handguns of five other men. Additionally, Carter appeals his related conviction and sentence for possession of a firearm by a convicted felon. Battle contends that the State committed a Brady[1] violation, that the office of the district attorney should have been disqualified in his case, and that his trial counsel was ineffective. Carter's sole challenge is that the evidence was insufficient to support his convictions. For the reasons which follow, we find the challenges to be unavailing and we affirm the convictions and sentences of both men.[2]

         The evidence construed in favor of the verdicts showed the following. On the evening of September 7, 2012, Kevin Brittain, Kenneth Roberts, Walter Williams, Jearmain Finch, Travron Gill, and Kyle Pope were "hanging out" and smoking marijuana in the carport of Brittain's home on Erin Avenue in Fulton County. They were not selling marijuana and did not have firearms. After about an hour had passed, three to five African American men with shirts over their faces and wielding pistols emerged from around a corner and yelled at the group, "freeze, don't nobody move, " "don't nobody reach for a pistol, " "put your hands up, " and "y'all know what it is." The six friends raised their hands but within seconds the gunmen started shooting. Brittain stayed in place with his head down. Pope ran around the outside of the house and hid in some bushes. Williams took off running but was shot "in the rear." Finch had his hands up and was first shot in the hand, and as he turned around and tried to run he was shot in the back and the left foot and fell to the ground; he was hospitalized for almost two months and sustained impairment to his ability to walk. Gill kept his head down, but after seeing Finch fall, he ran through the backyard and over a fence. Roberts, still with his hands raised, was shot in the right hand; the bullet went through his wrist and exited his forearm. As he turned to run, he was shot in the right thigh and then twice in the back. Roberts died as the result of the four gunshot wounds.

         Earlier that day, Adrieonna Jumper, who was then dating Carter, drove him around the area of the shooting in her rented white Hyundai Sonata. At one point, Carter exited the car, walked up the street, and spoke with a group of people in the "Big Four" store. One of the men, "Kyshawn, " said that someone at the Chevron station had jewelry and money in his pocket, that he knew where the man was, and that he "got to move." Roberts wore a very visible large diamond watch with a diamond link. Kyshawn asked who wanted to go rob the person, and Harris asked, "what's the lineup, " i.e., who was going along on the robbery. Battle discussed going and decided to join in the robbery. Carter returned to Jumper's car and asked Jumper if she could give him and the group a ride, and Jumper agreed. She recognized Harris and referred to him by his nickname, "Ding." She did not then know Battle by name, but she noticed that he had dreadlocks, and later identified him in a photographic lineup. Carter gave Jumper directions to Erin Avenue but did not say why they were going there, and Jumper drove them to Brittain's home.

         Following the shooting, the gunmen returned to Jumper's car, and she drove Harris, who was wounded, to the hospital. Battle did not stay with them. Later on, Jumper and Carter cleaned the back seat of the car with soap and water. After he was shot, Finch told his friends to take him to the fire station up the street from the house. They left Finch at the fire station and brought firemen back to the house to show them Roberts's body. Police and EMTs came to the scene of the shooting. Finch was taken to the hospital. Subsequently, Williams realized that he had been shot, and he was then taken to the hospital. Later on the night of September 7, Battle was at a neighborhood club and told Nathaniel Howard that he had gotten into a shootout, that one guy was running, and that he shot him in the back and thought that he had killed him. Earlier that day, Howard had seen Battle with a revolver. Battle also was worried that he had dropped his cell phone.

         The detective that responded to the shooting went to the hospital and noticed that both Harris and Finch were brought in around the same time, but he did not immediately get to speak to either of them. The detective collected Harris's clothing and possessions as evidence. Among Harris's possessions was Battle's cell phone, which was later confirmed as the phone Battle was carrying and using the day of the shooting. Records of a call to Battle's phone ten minutes before the shooting revealed that the phone was then located in the general geographic area of the crime scene.

         The investigating detective received a tip that Carter was related to the investigation, and he had a description of a white four-door sedan. He tracked the car to Jumper and Carter, and was able to impound it. Harris's blood was found in the vehicle. Video surveillance at the hospital showed that Harris was removed from the rear passenger's side of this car, which had blood stains in the rear passenger seat. The detective interviewed Jumper, and she admitted that she was at the scene of the shooting with Carter. She told the detective that Harris had flagged them down while they were driving, that Carter spoke with Harris, that Carter asked her if they could get a ride, that Carter gave her directions to Erin Avenue, and that Carter instructed her as to how to position the vehicle.

         The detective interviewed Carter, and Carter admitted that he was at the scene and that he had given Jumper directions to Erin Avenue but he maintained that he was sitting in the car next to Jumper during the shooting.

         In interviewing Howard, the detective determined that the motive behind the shooting was robbery and that Battle, Carter, and Harris were involved. Howard identified all three as being related to the shooting.

         S17A0714.

         1. Battle does not contest the legal sufficiency of the evidence of his guilt. Nevertheless, in accordance with this Court's general practice in appeals of murder cases, this Court has reviewed the record and we conclude that the evidence at trial was sufficient to enable a rational trier of fact to find Battle guilty beyond a reasonable doubt of 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. Battle contends that the State violated its duty under Brady v. Maryland to disclose exculpatory evidence in failing to reveal that there was a purported "deal" between state and federal authorities regarding witness Howard's federal sentence at the time of trial, as Howard had received a two-year reduction in his federal sentence in exchange for his testimony against Battle. However, Battle does not dispute that he did not raise this Brady claim at trial or in his motion for new trial, as amended; therefore, he has waived the right to raise this objection in the present appeal. Pierce v. State, 286 Ga. 194, 196 (2) (686 S.E.2d 656) (2009).

         In any event, Battle provides only speculation that any reduction in Howard's federal sentence[3] was directly related to his trial testimony inculpating Battle or that the State had any knowledge of such a deal.[4] In fact, Howard's trial testimony belies such claim. Howard acknowledged that he was then incarcerated on federal charges; that he had a gun charge and prior felonies, including three charges of possession of marijuana, a "gang charge, " and an aggravated battery charge; and that he knew Battle, Harris, and Carter. The prosecutor asked Howard why he testified against people he had known for years, and Howard said it was because law enforcement authorities had asked him about the shooting. The prosecutor asked Howard if he was hoping to get a deal or if he and the prosecutor had "any deal on this, " and Howard responded, "No, ain't no deal." Then when asked what he was hoping would happen, Howard said that nothing was guaranteed, but that he was hoping that "they might" give him a reduction in his sentence.

         3. Battle next contends that the district attorney should have disqualified himself and his office from prosecuting the case because the murder victim, Roberts, was the son of a longtime employee of the district attorney's office. Battle maintains that because of the employment the district attorney had a personal interest in the case that created the appearance of impropriety and a conflict of interest. But, the contention is unavailing. Battle did not raise this issue pre-trial or at trial, but ...


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