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Hood v. State

Supreme Court of Georgia

March 5, 2018

HOOD
v.
THE STATE.

          NAHMIAS, Justice.

         Appellant Tommy Hood was convicted of felony murder and other crimes in connection with the shooting death of Morrell Dorsey and the aggravated assault of Alkeyna Bilal. Appellant contends that the evidence presented at trial was insufficient to prove him guilty of felony murder; that the trial court committed plain error in failing to give, and his trial counsel provided ineffective assistance in failing to request, certain jury instructions; and that the trial court erred in sentencing him. We affirm.[1]

         1. (a) Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. In September 2013, Appellant, a convicted felon, was renting a motel room in DeKalb County, where he sold cocaine and did tattoos. On September 21 or 22, Kelsey Choates, who was also staying at the motel, saw a chrome revolver with a white grip in Appellant's motel room. Choates offered to buy the gun from Appellant, but Appellant declined.

         After midnight on the night of September 22-23, Morrell Dorsey and his girlfriend, Alkeyna Bilal, went to Appellant's motel room to buy crack cocaine. A man whom Appellant called "Slim" answered the door and let them in.[2]Appellant and a woman named Te Te were asleep in one of the beds. Dorsey woke up Appellant and bought a small amount of crack from him, which Dorsey shared with Bilal. Dorsey and Bilal then left.

         A few hours later, Dorsey and Bilal returned to Appellant's motel room with an unidentified friend who had food stamps to exchange for more cocaine. As before, Slim answered the door. Appellant and Te Te were sleeping again, so Dorsey, Bilal, and their friend sat down and waited for Appellant to wake up. After a while, there was a knock at the door, and Slim went to answer it. When a light was turned on, Dorsey grabbed a small packet of crack off a table and went briefly into the bathroom, where he inserted the packet into his rectum. Appellant woke up and, seeing several people in the room, became concerned about where his drugs were and started looking for them. As Dorsey came out of the bathroom, Appellant got up and started asking Dorsey, Bilal, and their friend where the crack was. Dorsey denied that they took anything. Appellant then pulled a chrome revolver with a white grip out of a nightstand, pointed the gun at them, and threatened to shoot them. Appellant patted down Dorsey and made him pull down his pants, bend over and cough, and squat, but did not find the missing crack. Te Te also searched Bilal unsuccessfully. Appellant said that he was going to shoot Dorsey in the leg whether or not he got the crack back, but Dorsey continued to deny taking the drugs.

         Appellant then handed the gun to Slim, and Appellant and Te Te began gathering their things and wiping down the room with bleach. Bilal tried to walk towards the door to leave, but Slim ordered her to stay. When Slim looked away for a moment, Dorsey lunged at him and grabbed for the gun. The two men fell onto a bed with Dorsey on top, and Appellant grabbed Dorsey by the throat and started choking him. During the struggle, Slim fired the gun twice, striking Dorsey both times in the torso. At that point, everyone except Dorsey ran out of the motel room, with Appellant grabbing his flat-screen TV and Xbox game console on the way out. Dorsey then stumbled out of the room and collapsed on the landing, where he died. The police found digital scales and plastic baggies in the motel room, and during Dorsey's autopsy, the packet of crack was found in his rectum.

         Three weeks after the shooting, the police arrested Appellant, who admitted that he sold crack cocaine from his motel room and was there when the shooting happened. Appellant denied ever touching the revolver and claimed that he did not realize that Slim had a gun until he heard the gunshots and fled. Appellant also claimed that he had more than $1, 000 in cash from a legal settlement hidden in the bathroom that he realized was gone when he awoke shortly before the shooting, but he acknowledged that Dorsey did not have the money. While in jail awaiting trial, Appellant told Choates, who was also in jail, that Dorsey had stolen Appellant's crack and deserved to die for it.

(b) Appellant contends that this evidence was insufficient as a matter of law to support his conviction for felony murder based on possession with intent to distribute cocaine, because his possession of cocaine was interrupted when Dorsey stole the packet of crack and put it in his rectum. We disagree.

         The murder statute says that "a person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice." OCGA § 16-5-1 (c). This Court has repeatedly explained that the victim's death need not occur at the moment the predicate felony is committed, so long as the felony is the proximate cause of the death. See, e.g., State v. Jackson, 287 Ga. 646, 649 (697 S.E.2d 757) (2010) ("[W]e have repeatedly held . . . that the phrase 'he causes' in OCGA § 16-5-1 (c) establishes proximate causation as the standard for liability in felony murder cases."); State v. Cross, 260 Ga. 845, 847 (401 S.E.2d 510) (1991) ("There is no merit to the defendant's contention that the victim must die during the commission of the underlying felony under a felony-murder indictment."); Jones v. State, 220 Ga. 899, 902 (142 S.E.2d 801) (1965) ("A murder may be committed in perpetration of a felony, although it does not take place until after the felony itself has been technically completed, if the homicide is committed within the res gestae of the felony.").

         Proximate causation exists in this context if the felony the defendant committed "directly and materially contributed to the happening of a subsequent accruing immediate cause of death, or if . . . the homicide (was) committed within the res gestae of the felony . . . and is one of the incidental, probable consequences of the execution of the design to commit the [predicate felony]." Jackson, 287 Ga. at 652 (citations and quotation marks omitted). These "proximate cause determinations are generally left to the jury at trial." Id. And the jury in this case was entitled to find beyond a reasonable doubt that Appellant's felonious possession with intent to distribute cocaine proximately caused the fatal shooting of the victim.

         To begin with, there is no dispute that the evidence was sufficient for the jury to find Appellant guilty of the predicate felony of possession with intent to distribute cocaine. Appellant admitted to the police that he sold cocaine from his motel room; he had distributed to Dorsey and Bilal some of the crack cocaine that he possessed with that intent a few hours before the shooting; and he was still committing that felony at the time the fatal encounter with Dorsey began. The fatal shooting occurred because Appellant possessed crack cocaine with intent to distribute and wanted to possess again the cocaine that he believed Dorsey had stolen from him, and it is apparent that Dorsey's violent death was a direct and foreseeable consequence of the felony Appellant committed.

         This Court and others have recognized that violence is inherent in the business of dealing illegal drugs. See, e.g., Davis v. State, 290 Ga. 757, 760 (725 S.E.2d 280) (2012) (explaining that drug transactions are foreseeably dangerous); Jackson, 287 Ga. at 652-653 (noting the "dangerous and violent nature" of drug dealing); Brint v. State, 306 Ga.App. 10, 12 (701 S.E.2d 507) (2010) ("'Firearms are tools of the drug trade.'" (citation omitted)). Appellant certainly understood that deadly violence could result from his drug-dealing, as he kept a revolver close at hand in the room from which he distributed his cocaine and brandished it once he realized that his possession of some of the cocaine may have been interrupted by Dorsey. The fact that Appellant did not immediately shoot Dorsey, but instead held Dorsey and Bilal at gunpoint while Appellant and Te Te searched them seeking to regain possession of the cocaine (and then had Slim do the same while Appellant and Te Te prepared to leave the crime scene), illustrates rather than undermines the connection between Appellant's drug felony and Dorsey's ultimate shooting death. The evidence shows that Appellant trusted Slim to assist him in his felonious conduct, as he let Slim stay in his motel room, allowed Slim to admit Dorsey and Bilal twice to buy drugs even as he slept, and handed Slim his gun to keep Dorsey and Bilal under control, which Slim did. Nor was it unpredictable that, after being held at gunpoint by both Appellant and Slim, and after Appellant told Dorsey that he would be shot no matter what, Dorsey tried to disarm Slim and was shot to death as Appellant came to aid Slim and was choking Dorsey.

         Thus, Dorsey's death was closely related temporally and spatially to Appellant's felony of possession with intent to distribute cocaine; it occurred during the res gestae of that felony; and it was a reasonably foreseeable consequence of that inherently dangerous felony. Because the evidence presented at trial, when viewed in the light most favorable to the verdict, was sufficient for a rational jury to find proximate causation and thus to find that Appellant was guilty of felony murder based on possession with intent to distribute cocaine, we affirm his conviction for that crime. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Davis, 290 Ga. at 760-761. See also Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009) ("'It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)). Having reviewed the record, we also conclude that the evidence was legally sufficient for a rational jury to find Appellant guilty beyond a reasonable doubt of the aggravated assault of Dorsey and Bilal and possession of a firearm during the commission of a felony.

         (c) Appellant contends - and the State agrees - that the trial court erred in "merging" the guilty verdict for felony murder based on possession of a firearm by a convicted felon into the conviction for felony murder based on possession with intent to distribute cocaine. Under our precedent, the felony murder verdict based on the firearm charge was actually vacated by operation of law. See Leeks v. State, 296 Ga. 515, 523-524 (769 S.E.2d 296) (2015). But this error in nomenclature does not affect the trial court's judgment, as either way, Appellant was not convicted ...


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