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Daniels v. State

Supreme Court of Georgia

September 13, 2017

DANIELS
v.
THE STATE. THOMAS
v.
THE STATE.

          Hines, Chief Justice.

         In case number S17A0931, Demetrius Tyshaun Daniels appeals his convictions and sentences for felony murder, violations of the Street Gang Terrorism and Prevention Act, and possession of a firearm during the commission of a felony, in connection with the death of Alvin Hunt; in companion case number S17A0932, Tobias Demere Thomas appeals his convictions and sentences for the felony murder of Bernardino Perez, violations of the Street Gang Terrorism and Prevention Act, armed robbery, aggravated assault, and possession of a firearm during the commission of a felony, in connection with multiple criminal incidents. For the reasons that follow, we affirm in both cases.[1]

         Construed to support the verdicts, the evidence showed that Daniels and Thomas were members of a local street gang known as the "Forrest Hill Boyz, " and were tried together, with four other defendants, for their roles in various crimes that took place in and around Moultrie. Of the incidents that resulted in convictions germane to these appeals, the first occurred in the Sardis Church Road area in Moultrie. On the night of April 25, 2009, eyewitnesses heard gunshots and saw an SUV drive away from a mobile home park located on Sardis Church Road. Law enforcement officers arrived and found Perez fatally shot in the chest; he had been paid that day, but no money was found on his person. Alphonso Knighton, who was a co-indictee of Daniels and Thomas, testified that he, Thomas, and Jeudy, each armed with a handgun, drove to the Sardis Church Road neighborhood. When they saw Perez, Jeudy jumped out of the vehicle to rob him. Knighton testified that he heard gunshots, Jeudy got back in the vehicle, told them not to say anything, and they left. An hour before Perez was killed, Crystal Slaughter was outside her cousin's home and Thomas called her to come over to Jeudy's SUV. Thomas handed her a cell phone, and she spoke with Danny Hill; the phone call was recorded as Hill was then incarcerated, and had called Thomas from jail. While Thomas spoke with Hill, Thomas said he had "three heaters, "[2] was "loaded to the T, " and was looking for "something to do now."

         Another set of crimes occurred later that same night, when Knighton, Jeudy, and Thomas went to a mobile home on Circle Road. Knighton held a gun on two or three people outside the home, while Jeudy and Thomas went inside it; Knighton, Jeudy, and Thomas had their faces covered, and all three were armed with pistols. Inside, either Jeudy or Thomas grabbed the hair of Margarita Ortiz-Vasquez, who resided in the home, and hit her with a pistol. The assailants demanded money, and Ortiz-Vasquez's husband, Samuel Cruz, told her to give the men her backpack, in which the couple kept money; it contained $1, 500, a gold chain, checks, social security cards, and the title to a vehicle; one of the assailants also took money from the pockets of Angel Gaspar. One of the assailants shot Jorge Luis Cruz and Javier Santiago, who also resided in the home; both of these shooting victims survived. Knighton heard two gunshots, and Jeudy and Thomas ran from the home with what Knighton described as a "pocketbook"; one of the victims saw the three men flee in a vehicle that matched the description of Jeudy's; Jeudy gave Knighton $200 of the robbery proceeds. Thomas told his cousin, Michael Enoch, that he and Jeudy had been involved in robbing, hurting, and killing "some Hispanics, " and had obtained about $900 by committing those crimes.

         On July 2, 2010 another set of crimes occurred in and around the Shy Manor Apartments in Moultrie. Deon Moore ("Deon") was driving his car with its windows down and his brother Basil Moore ("Basil") and Alvin Hunt as passengers. As they drove past a group of people outside the apartments, someone sprayed liquid from a water gun into the car. Deon stopped and the three men got out, prepared to fight people in the crowd. Threats to call police were made, and the three men got back into the car and left. Later, Daniels got into a vehicle with co-defendant Robert Fuller and co-indictee Dontavious Jackson. After a phone call, they met Thomas, who distributed handguns to Daniels, Fuller, and Jackson.[3] They then went to the Shy Manor Apartments looking for Hunt, Basil, and Deon, and found them. Daniels, Fuller, and Jackson started firing at Hunt, Basil and Deon, who were seated on a porch at the complex. Hunt was hit while trying to run away; he was taken to a hospital, where he died of his injuries. Daniels was identified as one of the shooters, but it was unknown who fired the fatal gunshot.

         Daniels did not testify at trial. Thomas testified that, as to the Sardis Church Road crimes, he left the company of Jeudy and Knighton before they went to Sardis Church Road, did not see them again that night, and had no involvement in the crimes that occurred on Sardis Church Road or Circle Road. Thomas also testified that he had received a telephone call from Hill, and that during that call, he said that he was "riding around with two heaters. Two or three heaters, something like that." However, Thomas maintained that this was because, during the phone call, Hill had asked that Thomas "flex" during the call, which meant to exaggerate his statements in a "tough" manner; Thomas testified that his reference to "heaters" was in that vein, and was inspired by rap song lyrics of an artist named T.I., and that "T.I." was also a nickname that had been given to Thomas.

         Case No. S17A0931

         1. Daniels 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 concludes that the evidence presented at trial authorized the jury to find Daniels 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. Daniels contends that his trial counsel failed to provide effective assistance in several respects. In order to prevail on any such claim, he must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 S.E.2d 362) (1985), citing Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). To meet the first prong of the required test, he must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional conduct, " and that counsel's decisions were "made in the exercise of reasonable professional judgment." Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case, id. at 784, and decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. Redding v. State, 297 Ga. 845, 850 (5) (778 S.E.2d 774) (2015). To meet the second prong of the test, Daniels must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Smith, supra at 783. "'We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Robinson v. State, 277 Ga. 75, 76 (586 S.E.2d 313) (2003).

         Daniels contends that trial counsel should have moved to sever his prosecution from that of the other defendants. During the hearing on Daniels's motion for new trial, trial counsel testified that he believed it was a better course of action to ensure that Daniels would not be tried separately; counsel noted that Daniels had been offered - and had rejected - a favorable plea deal, and that counsel had reason to believe that if Daniels were tried alone, a co-defendant would accept a deal similar to the one offered to Daniels, and would testify against Daniels, and that this decision was made in consultation with Daniels. Counsel further testified that he believed that the better course of action was to "hide in the weeds" and, as the multi-defendant trial concerned five incidents, and as Daniels was accused of being involved in only one of them, to try to avoid Daniels being mentioned often during trial, and hope that he could remain in obscurity.[4] Counsel's chosen strategy was not patently unreasonable, see Thomas v. State, 300 Ga. 433, 438 (2) (a) (1) (796 S.E.2d 242) (2017); Harris v. State, 279 Ga. 522, 529 (6) (615 S.E.2d 532) (2005), and the fact that Daniels's present counsel might have pursued a different strategic course does not warrant a different conclusion. Woods v. State, 291 Ga. 804, 808 (2) (733 S.E.2d 730) (2012).

         Daniels also asserts that trial counsel was "generally ineffective, " apparently by asking what present counsel considers an insufficient number of questions during voir dire and the cross-examination of witnesses. During the hearing on his motion for new trial, Daniels did not ask trial counsel any questions about voir dire or the cross-examination of witnesses, and makes no specific argument that trial counsel's conduct was deficient regarding these matters other than to note that counsel for Willie Hightower, who was tried with Daniels, but only on charges arising from a separate incident in which Daniels was not alleged to be involved, was able to secure an acquittal for his client. However, the mere fact that during Daniels's trial, the State failed to prove that Hightower - or anyone else - was guilty beyond a reasonable doubt of the charged crimes arising from this separate incident[5] does not establish that Daniels's trial counsel performed deficiently in pursuing the chosen strategy. Of course, "decisions about what questions to ask on cross-examination are quintessential trial strategy and will rarely constitute ineffective assistance of counsel." Henry v. State, 297 Ga. 74, 77 (2) (c) (772 S.E.2d 678) (2015) (Citation and punctuation omitted.) And, Daniels does not suggest what further questioning of prospective jurors or witnesses trial counsel should have pursued, much less show what evidence might have been produced from such questioning, and fails to meet either prong of the Strickland test.

         Case No. S17A0932

         3. Thomas contends that the evidence presented by the State was insufficient to authorize the jury to find him guilty of the crimes of which he was convicted.[6] See Jackson, supra. He particularly asserts that the testimony of Knighton, who was an accomplice in the Sardis Church Road and Circle Road crimes, was uncorroborated.

         At the time of Thomas's 2012 trial, former OCGA § 24-4-8 provided:

The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness, except in prosecutions for treason.[7]

         As to the accomplice corroboration requirement,

it is well established that slight evidence of corroboration is all that is needed. The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant's conduct before and after the crime was committed may give rise to an inference that he participated in the crime.

McCain v. State, 300 Ga. 400, 401 (794 S.E.2d 58) (2016) (Citations and punctuation omitted.)

         Evidence corroborating Knighton's testimony regarding Thomas's involvement in the Sardis Church Road crimes included the recorded cell phone call in which Thomas told Hill that he was carrying "three heaters, " was "loaded to the T, " and looking for "something to do now"; although Thomas in his testimony offered other explanations of those phrases than that he was carrying weapons and seeking a criminal opportunity, the jury was not required to credit this testimony. Cain v. State, 300 Ga. 614, 615 (1) (797 S.E.2d 466) (2017). Further, Thomas was tied to these crimes through the testimony of Eric Lamar, and through ballistic evidence. Lamar testified that: on April 19, 2009, he shot Ricky Yates with a .380 pistol; that same day, he went to a location near Thomas's home, telephoned Thomas, and asked Thomas to meet him; Thomas and Jeudy came to meet Lamar; the three men got into Jeudy's vehicle and searched for another man to shoot in retaliation for a prior incident which caused Lamar to be hospitalized; they found the man and shot at him; and after that shooting, Lamar gave the .380 pistol to Thomas, and told him to get rid of it. This .380 pistol was recovered on November 5, 2010, by a law enforcement officer after it was discarded by Nathaniel Baker while he was being pursued on foot by law enforcement officers; at the end of the pursuit, Baker ran into a house that bore graffiti indicative of the Forest Hill Boyz gang. Cartridge casings recovered from the scene of the shooting of Yates, and cartridge casings recovered from the scene of the fatal shooting of Perez were shown to have been fired from the same .380 pistol; it was also shown that at the time of the fatal shooting of Perez, Baker was incarcerated.

         Further, Knighton's testimony regarding Thomas's involvement in the Circle Road crimes was corroborated by Thomas's own statements to Enoch. And, as to the violations of the Street Gang Terrorism and Prevention Act, in addition to Knighton's testimony, co-indictee Jackson testified that he was a member of the Forest Hill Boyz, as was Thomas, and they engaged in street gang activity. See Pittman v. State, 300 Ga. 894, 897 (799 S.E.2d 215) (2017) (Evidence corroborating accomplice testimony "may be testimony from another accomplice. [Cit.]") Two other witnesses, who denied being members of the gang, also testified that Thomas was a member of the Forest Hill Boyz, and engaged in the activities of that gang.

         The evidence presented at trial authorized the jury to find Thomas guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson, supra.

         4. Thomas asserts that the trial court erred in denying his general demurrer.

An indictment may be challenged by general or special demurrer. A general demurrer "challenges the sufficiency of the substance of the indictment." [Cit.] If the accused could admit each and every fact alleged in the indictment and still be innocent of any crime, the indictment is subject to a general demurrer. [Cit.] If, however, the admission of the facts alleged would lead necessarily to the conclusion that the accused is guilty of a crime, the indictment is sufficient to withstand a general demurrer. [Cit.] A special demurrer, on the other hand, "challenges the sufficiency of the form of the indictment." [Cit.] By filing a special demurrer, the accused claims "not that the charge in an indictment is fatally defective and incapable of supporting a ...

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