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Muckle v. State

Supreme Court of Georgia

December 11, 2017



         Appellant Malcolm Muckle was convicted of felony murder in connection with the shooting death of Travis Callaway, his accomplice in an attempted armed robbery. In this appeal, he claims that the evidence at his trial was insufficient to support his conviction and that his trial counsel provided ineffective assistance. Neither of those claims has merit, so we affirm.[1]

         1. Appellant first argues that the evidence presented at his trial was legally insufficient to support his conviction.

         (a) Viewed in the light most favorable to the verdicts, the evidence showed the following. Appellant and Callaway were friends. In the days before the murder, Appellant frequently visited Callaway at the house of Callaway's fiancée, Latrice Yearby. On April 3, 2012, Callaway, Yearby, and Appellant drove together to an Avis rental car location. An acquaintance of Callaway rented a Dodge Avenger for them, with Callaway promising to reimburse him. Callaway said that he needed the rental car because Yearby's car had broken down, but Yearby testified that her car was working at the time. At Avis, Yearby overheard Appellant and Callaway discussing their plan to pick up Desmond Hill. After renting the car, Appellant, Callaway, and Yearby drove to Yearby's apartment. Appellant and Callaway left soon afterwards in the rental car. Callaway returned to Yearby's apartment for dinner, and then called Appellant from Yearby's phone. He left shortly after, telling Yearby that he had to make sure Appellant had a ride home. Callaway returned to Yearby's apartment again later that evening and changed into dark colored pants and white tennis shoes before leaving.

         At about 2:00 a.m. that night, Appellant's cousin Quinici Latimore, who was known as "Bipolar, " received a call from Wilma Scott asking Latimore to give her some synthetic marijuana.[2] When Scott arrived at Latimore's apartment complex, he met her outside and gave her the requested drugs. Scott then drove away and Latimore began walking back to his apartment. He heard footsteps behind him right before someone grabbed him, put an arm around his neck, and pointed a gun at his neck. Latimore described the assailant as a "thick and heavyset" person wearing a ski mask.[3] Latimore scuffled with the assailant, grabbed the gun, and started walking quickly back to his apartment with the gun.

         As Latimore approached the apartment breezeway, a second masked assailant wearing a green and black coat jumped out from behind the building and shot at Latimore twice. Latimore shot back five times before he ran out of bullets. He then ran to his apartment and went inside. Latimore told both his mother and his brother, who were in the apartment, that he believed he had killed someone, but he did not call the police, because as a convicted felon, he was worried that he could not legally defend himself.

         At around 6:00 a.m., Yearby heard beating at her door. She opened the door and found Appellant there. Appellant asked Yearby whether she had heard from Callaway, and Yearby said no. Appellant then said that Callaway was dead. Appellant told her that he, Hill, and Callaway had driven to an apartment complex to buy some marijuana and that Callaway had gotten out of the car acting as if he did not want the others to know where he was going. Appellant then heard five gun shots, and he and Hill drove away. Hill called 911 and then took the battery out of the phone and threw the phone out of the window at a stop sign because he did not want the police to "see where they were."

         Appellant and Yearby then drove to the apartment of Callaway's brother, Tavarius, and told him that Callaway was dead. Appellant gave the following account to Tavarius. He, Hill, and Callaway were "going to hit Bipolar, " meaning they were going to rob him. Once they arrived at the apartment complex, all three men got into position.[4] Hill gave the signal on his phone for Callaway to approach Latimore. Then Appellant heard gunshots, he saw Callaway fall to the ground, and he and Hill ran away. When he and Hill returned to the scene and saw that the rental car was still in the parking lot, they knew that Callaway was dead, so they got in the other car and drove away.

         The police officers who responded to Hill's 911 call found Callaway dead, lying face down in the breezeway. He was wearing a green and black camouflage jacket, white shoes and blue jeans, and he had a gun in his hand and car keys for the rental car in his front pocket. Appellant's and Callaway's fingerprints were found in the rental car. An autopsy revealed that Callaway died from a gunshot wound to the back of his head.

         The day after the crimes, the police interviewed Tavarius. During the interview, Tavarius called Appellant and the conversation was recorded by the police. Appellant repeated some details of the crimes, including that the shooting had taken place in the breezeway of the apartment complex, a fact that had not yet been made public. Appellant also said that Callaway had said that he was carrying a gun, and that he met Scott at the scene.

         Appellant did not testify during his trial. His main defense was that he was merely present at the crime scene and did not participate in the commission of the crimes.

         (b) Appellant argues first that the evidence he participated in the crimes was solely circumstantial and the State did not "exclude every other reasonable hypothesis save that of the guilt of the accused" as required by OCGA § 24-14-6.[5] Appellant asserts that another reasonable hypothesis was that Hill was the other assailant Latimore saw and Appellant was merely present in the vicinity. However, Appellant told Tavarius that he, Hill, and Callaway went together to Latimore's apartment complex with the intent to rob Latimore; he knew Callaway was armed; they all got into position when they arrived; Hill signaled for Callaway to approach Latimore; and Callaway was shot during the confrontation with the putative armed robbery victim. Even if the evidence indicated that Hill was the other assailant Latimore saw, "a person may be convicted of commission of a crime even if he or she does not directly commit the crime but, instead, '[i]ntentionally aids or abets in the commission of the crime.'" Flournoy v. State, 294 Ga. 741, 745 (755 S.E.2d 777) (2014) (quoting OCGA § 16-2-20 (b), which defines parties to a crime). See also Shepard v. State, 300 Ga. 167, 168 (794 S.E.2d 121) (2016). In his discussions with Tavarius, Appellant admitted the main fact of the felony murder charge of which he was convicted - that he was a party to the attempted armed robbery that resulted in Callaway's death. Accordingly, Appellant made not "'a mere incriminating admission, '" but "'a confession, '" which is direct evidence of his guilt, and "[t]his is not, therefore, a purely circumstantial case." Merritt v. State, 292 Ga. 327, 329 (737 S.E.2d 673) (2013) (citation omitted).

         Appellant also argues, however, that the jury should have discounted his confession because it was not corroborated by evidence that he was more than merely present. Appellant is wrong. "A confession alone, uncorroborated by any other evidence, shall not justify a conviction, " OCGA § 24-8-823, but "'no specific manner of corroboration [of the confession] is required, and corroboration in any particular is sufficient.'" Graham v. State, ___ Ga.___, ___(804 S.E.2d 113, 115) (2017) (citation omitted).[6] The evidence corroborating Appellant's confession includes his frequent association with Callaway in the days prior to the murder; his participation with Callaway in renting the car found at the crime scene - in which both their fingerprints were found - and their discussion of picking up Hill later on; Latimore's testimony that he exchanged gunfire with Callaway; Appellant's statement to Yearby following the shooting; and the evidence that the shooting occurred at the specific breezeway location that he identified. Viewed in the light most favorable to the verdicts, this evidence was sufficient to corroborate Appellant's confession. See Norman v. State, 298 Ga. 344, 346 (781 S.E.2d 784) (2016).

         Furthermore, the evidence was sufficient as a matter of constitutional due process, as a rational jury could conclude from the evidence that Appellant was guilty beyond a reasonable doubt as a party to felony murder based on attempted armed robbery. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also OCGA § 16-2-20; Sapp v. State, 300 Ga. 768, 769 (798 S.E.2d 226) (2017) ("While mere presence at the scene of the crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense." (citation and quotation marks deleted)); Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) ...

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