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Ross v. State

Court of Appeals of Georgia, Second Division

October 27, 2017

ROSS
v.
THE STATE.

          MILLER, P. J., DOYLE and REESE, JJ.

          Doyle, Judge.

         After a jury trial, Deandre Ross was found guilty of two counts of aggravated assault[1] and two counts of possession of a firearm during the commission of a felony[2]stemming from a drug transaction turned robbery. Ross filed a motion for new trial, which he later amended. After a hearing, the trial court denied the motion, and this appeal followed. . Ross argues that the trial court erred by failing to instruct the jury that accomplice testimony must be supported by corroborating evidence pursuant to OCGA § 24-14-8. For the reasons that follow, we reverse.

         Viewed in favor of the verdict, [3] the record shows that Ross, Charles Holmes, and Kelvin Dukes were indicted together based on a shooting that occurred during an alleged attempted drug buy at the apartment of Myron Glenn.[4] Glenn testified that an individual he knew only as "Kinfolk" set up large marijuana purchases at Glenn's apartment for which Glenn was paid a small fee. To facilitate this particular sale, Glenn called Holmes and told him to bring over two pounds of marijuana to sell to Kinfolk. Kinfolk later arrived at Glenn's apartment with Dukes, but the two left to obtain cash to buy the marijuana and to pick up Ross, who supposedly had eight pounds of marijuana to sell to Kinfolk and Dukes along with the two pounds they were going to buy from Holmes.

         When Holmes arrived at Glenn's apartment, Glenn called Kinfolk to let him know that the two pounds of marijuana had arrived. Kinfolk told Glenn that he had been held up waiting on another person, but that Dukes and Ross would be back over to complete the transaction with Holmes. Glenn testified that Holmes was in the kitchen, and Glenn looked out the window, where he saw Dukes and Ross pull up in a black car. Dukes came up to the apartment to check and make sure everything was okay, then went back down to the car, and Glenn sat on the couch in the living room. Glenn was not anticipating that any of his family would be at home, but his stepson, R. S., came in through the door, and Glenn closed R. S. in his bedroom before Dukes and Ross returned.

         Glenn testified that Ross came back up to the apartment again, and then went down to the car again, and Glenn double checked that his stepson's door was closed. Glenn testified that at this point, Ross "busted in the door with two revolvers in my face and was like 'Get down, get down, get down."[5] Glenn testified that Dukes also entered the apartment, pulled out his gun, and walked toward Holmes in the kitchen. Glenn got on the ground, Ross and Dukes switched positions so Ross went toward the kitchen and Holmes, and Dukes came toward him. As Ross walked toward the kitchen, Glenn heard him say "whoa, whoa, hey, hey, " and then gunfire erupted.

         Glenn testified that when the gunfire subsided, he got up to look for R. S., Dukes jumped out of a window, and Ross staggered out the door of the apartment; Holmes also exited through the apartment door, and Glenn ran down the steps past Holmes to try and find R. S. Glenn testified that while he was looking for R. S., his neighbors told him that Ross was trying to leave in the black car, so Glenn took the car keys and pulled Ross from the car. Glenn also saw Dukes lying on the ground motionless underneath the apartment window. Glenn denied owning a weapon but admitted that he had nine millimeter ammunition in his home. Glenn was not shot during the incident.

         Holmes testified that he regularly purchased marijuana for his own use from Glenn, he denied ever selling marijuana, and he admitted he was present during the time of the shooting to make a purchase along with another individual known to him as "Glitter Piece."[6] Holmes testified that when he and Piece entered Glenn's apartment, Dukes was already there, sitting on the sofa, and Glenn was standing up; Glenn's stepson arrived and went straight to his bedroom. Holmes testified that he went to the kitchen, and Ross entered the apartment, quickly looked around, and then exited after saying something about going to the car to get the money. Holmes testified that Ross quickly returned, looked around, and brandished a single, small caliber revolver, telling Holmes to get on the floor. Holmes got to the floor, and Ross turned to the living room; Holmes took the opportunity to take out his own Taurus nine millimeter handgun and get up, but as he did so, Ross fired one shot at him before Holmes shot Ross multiple times in the chest. While he was firing at Ross, Holmes also heard gunfire coming from the living room, but he was not sure if it was Glenn, Piece, or Dukes; he did not see Dukes with a weapon but did see Glenn with one. Holmes saw Dukes go out the window, but he was not clear as to whether the man was pushed, jumped, or fell after being shot. After sustaining gunshot wounds, Holmes eventually made his way out of the apartment and ran down with Piece to his car, which Story was driving; the trio left the complex and drove off. They went to a gas station, where only Holmes remained and called police. After being asked how he sustained his wounds, Holmes said that he was shot during an attempted robbery as he walked down the street.

         R. S. testified that when he arrived at the apartment, there was someone there in addition to Glenn, who was in the kitchen. A few minutes later, R. S. heard yelling and the words "get down" and then heard gunshots, at which point he jumped out of his bedroom window.

         When police responded, Dukes was lying in the bushes underneath the window from which he fell. Dukes suffered approximately ten gun shot wounds - eight to his front and at least two in his back - and counterfeit money was found near and in the bushes where he was found as well as in his pockets when he was taken to the hospital for treatment. Ross suffered numerous gunshot wounds to the legs and one to the head, but he was not shot in the chest. No residue test was performed on Dukes or Ross; no fingerprints were discovered on the firearms from the scene. Over $2, 000 in legal U.S. currency was found in Holmes's clothing at the hospital.

         Approximately eight ounces of marijuana was found at the scene. Blood was found on the exterior landing, stairs, sidewalk, pavement, and inside the apartment; the blood on the landing was matched to Ross, and blood from Dukes and Holmes was discovered elsewhere as well as blood from an unknown individual. A firearms expert testified that based on the nine-millimeter shell casings recovered from the scene, two different makes of nine-millimeter handgun were fired during the altercation. No 9-millimeter handguns were recovered from the scene, but two weapons - a Ruger 22-caliber revolver and a Smith & Wesson 32-caliber revolver were recovered and linked to the shooting; no projectiles from those weapons were found on the scene except in the weapons themselves. The firearms expert also testified that a 40-caliber weapon not found at the scene was used to fire at least one 9-millimeter casing recovered from the scene. A search of Ross's vehicle uncovered his wallet, Ross's identification, counterfeit U.S. currency, and Dukes's wallet. No marijuana, weapons, or ammunition was discovered in Ross's vehicle. Several 911 calls were presented to the jury, including one from a woman who said she was on the phone with an individual named "D" when she heard gunshot wounds and was cut off from the call, and one purportedly from Ross, stating that he was being shot.

         In its charge to the jury, the trial court stated that "[t]he testimony of a single witness if believed is sufficient to establish a fact. Generally, there is no legal requirement of corroboration of a witness, provided you find the evidence to be sufficient." It is undisputed that the trial court did not charge the jury that the testimony of an accomplice must be corroborated by other evidence.[7]

         In his sole enumeration of error on appeal, Ross argues that the trial court committed plain error by failing to instruct the jury on the necessity of corroboration of accomplice testimony as required by OCGA § 24-14-8. Ross contends that the only testimony connecting him and Dukes to the alleged counts of aggravated assault came from Glenn and Holmes, both individuals who could have been considered by the jury to be Ross's and Dukes's accomplices in the common criminal enterprise of the drug sale at Glenn's home.[8]

         "[I]t is error for a trial court to refuse to give a requested instruction on accomplice corroboration, [but because Ross] did not request such a jury instruction, reversal depends on whether he can meet the ...


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