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Gadson v. State

Supreme Court of Georgia

June 18, 2018

GADSON
v.
THE STATE.

          NAHMIAS, JUSTICE.

         Appellant Joseph Gadson and his brother Nkosi Gadson were tried together and found guilty of the murder of Amady Seydi and other crimes committed against Seydi and his girlfriend Tarah Medsker over the span of three weeks in the fall of 2005. Appellant contends that the trial court committed plain error with regard to one burglary charge by failing to instruct the jury on the State's burden of proof when the evidence of a crime is wholly circumstantial. He also contends that he cannot obtain full and fair appellate review of his convictions because five documents are missing from the record of the trial. As explained below, Appellant has not established plain error in the omission of the proof-by-circumstantial-evidence instruction, nor has he shown that he has been harmed by the incomplete record. We therefore affirm his convictions.[1]

         1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. According to Medsker, in 2005 she lived with Seydi in the same apartment complex as Appellant and his brother Nkosi. Seydi sold small amounts of marijuana out of his apartment, and Medsker knew Nkosi because he often purchased marijuana from Seydi. In late September, a few weeks before the murder, Seydi and Nkosi got into a heated dispute over a marijuana deal, and Seydi told Nkosi not to come back to his apartment again. Two days later, Seydi and Medsker's apartment was burglarized, and several cameras, some marijuana, and other items were stolen. That night, Appellant came to the apartment, and he appeared "a little nervous" when he and Seydi discussed the burglary.

         Two or three days before the murder, Appellant and Nkosi came to the apartment, and Nkosi pointed a gun at Seydi and Medsker. The brothers then demanded that Seydi give them half of his profits from his marijuana sales each day, took Seydi's gun and Medsker's cell phone, and left. Because of that incident, Seydi and Medsker decided to move, and they rented a truck and began packing.

         On the evening of October 11, 2005, Seydi and Medsker were at the apartment removing the last of their belongings. Medsker answered a knock on the door and let in a man she believed was a friendly acquaintance. He was followed in by Nkosi and Appellant, who wore a dark nylon mask; Medsker was able to identify Appellant because she could see his face through the stocking mask and recognized his voice, stature, and demeanor. Appellant held a gun to Medsker's head while Nkosi sought out Seydi. Seydi was shot multiple times and died almost immediately. During an interview with the police that night, Medsker identified Nkosi in a photo lineup as one of the assailants, and a few days later she identified Appellant in another photo lineup as the masked assailant.[2]

         The State's evidence also showed that on the day after the murder, the police arrested the brothers and searched their apartment. The police found a black stocking mask, a camera stolen in the first burglary, and the gun and cell phone taken from Seydi and Medsker a couple of days before the murder. They also found some marijuana and a pipe that tested positive for cocaine.[3]Appellant and Nkosi admitted during their interviews with the police that they were involved in a dispute with Seydi over marijuana and money.

         Appellant does not contend that the evidence was insufficient to support his convictions as a matter of constitutional due process. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was legally sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See id. See also Reeves v. State, 288 Ga. 545, 546 (705 S.E.2d 159) (2017) (explaining that "the determination of a witness'[s] credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury, " and that former OCGA § 24-4-8 (now OCGA § 24-14-8) provides that "[t]he testimony of a single witness is generally sufficient to establish a fact" (citation and punctuation omitted)).

         2. Appellant contends that the trial court committed plain error by failing to give the jury an instruction based on former OCGA § 24-4-6 regarding the State's burden of proof when the evidence of a crime is wholly circumstantial. That statute - a part of the old Evidence Code in effect at the time of Appellant's trial in 2008 that was carried forward in the new Evidence Code as OCGA § 24-14-6 - says: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Appellant concedes that he failed to object to the omission of this instruction and that our review of his claim that it should have been given is therefore limited to plain error. See OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 32 (718 S.E.2d 232) (2011). To establish plain error, Appellant must show that the instructional error alleged was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceeding, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. See Durham v. State, 292 Ga. 239, 241 (734 S.E.2d 377) (2012).

         Appellant argues that the evidence was wholly circumstantial as to the first burglary of Seydi and Medsker's apartment, which was charged in Count 8 of the indictment. We agree.[4] The evidence as to that burglary, which is recounted in Division 1 above, was entirely circumstantial; there was no direct evidence placing Appellant at Seydi and Medsker's apartment at the time of the first burglary. While the evidence was legally sufficient to support the jury's finding that Appellant and his brother Nkosi committed the burglary together, it was also consistent with the inference that Nkosi committed the burglary alone. See Stubbs v. State, 265 Ga. 883, 885 (463 S.E.2d 686) (1995) (explaining that "direct evidence is that which is consistent with either the proposed conclusion or its opposite, " whereas "circumstantial evidence is that which is consistent with both the proposed conclusion and its opposite" (emphasis in original)).[5]

         Because the evidence of Appellant's participation in the first burglary was wholly circumstantial, this Court's "clear" and longstanding precedent required the trial court to instruct the jury on proof by circumstantial evidence as set forth in former OCGA § 24-4-6 even though Appellant did not request such an instruction. See Stubbs, 265 Ga. at 884 ("Our law remains clear: (1) Even in the absence of a request, a trial court must charge on the law of circumstantial evidence when the State's case rests solely upon such evidence; (2) The charge should consist of the language set forth in [former] OCGA § 24-4-6."). See also Walker v. State, 295 Ga. 688, 691 (763 S.E.2d 704) (2014). Accordingly, the trial court's failure to give an instruction tracking former § 24-4-6 was obvious error, and it was not an error that Appellant affirmatively waived. However, Appellant has not met his burden under the plain error test to show that the omission of this instruction likely affected the jury's verdict on Count 8.

         "In evaluating claims of instructional error, we examine the jury charge as a whole." Woodard v. State, 296 Ga. 803, 806-807 (771 S.E.2d 362) (2015). Viewed as a whole, the trial court's charge sufficiently informed the jury of the State's burden of excluding all other reasonable hypotheses except Appellant's guilt with respect to the first burglary. The court gave instructions on the State's burden to prove Appellant's guilt beyond a reasonable doubt and the State's duty to prove beyond a reasonable doubt "every material allegation of the indictment and every essential element of the . . . crimes charged." The court also advised the jury that "facts and circumstances that merely place upon [Appellant] a grave suspicion of the . . . crimes charged, or that merely raise a speculation or conjecture as to [Appellant's] guilt are not sufficient to authorize a conviction." The court discussed the difference between direct and circumstantial evidence, explaining that direct evidence "points immediately to the question at issue" while circumstantial evidence may "be used to prove a fact by inference, " but such inferences must be "reasonable and justified in light of your experience." The court then gave detailed instructions explaining that the jury was not authorized to find Appellant guilty based merely on the circumstances of his presence at the scene of a crime or his association with other persons involved in the commission of a crime.[6]

         The other reasonable hypothesis supported by the evidence was that Appellant's brother committed the first burglary alone, even if Appellant learned of it after the fact. The instructions the trial court gave, particularly the instructions on mere presence and mere association, adequately advised the jury that if it believed that the circumstantial evidence supported this alternative hypothesis, it should return a verdict of not guilty. The jury disregarded that hypothesis and returned a verdict of guilty, as the evidence authorized it to do. See Bailey v. State, 299 Ga. 807, 808 (792 S.E.2d 363) (2016). Indeed, while this alternative hypothesis may have been available in theory, Appellant never suggested it to the jury at trial - not in opening statement, closing argument, or at any other point. Appellant was tried with Nkosi, and the joint defense theory was that Medsker was an unreliable witness and that neither brother had committed any of the crimes charged; Appellant did not want to suggest that his brother alone committed the first crime.

         Under these circumstances, we cannot say that if the trial court had added a jury instruction based on former § 24-4-6, it is likely that the jury would have returned a different verdict on Count 8. Appellant has therefore failed to establish plain error. See Manning v. State, Case No. S18A0369, 2018 WL 2293246, at *4 (Ga. May 21, 2018).

         3. Appellant also contends that he cannot obtain full and fair appellate review of his convictions because certain documents are missing from the record of his trial.[7] Between 2011 and 2016, Appellant raised the issue of the trial record being incomplete in several pleadings and hearings. In his amended motion for new trial, filed in October 2016 - eight years after the trial - Appellant asserted, and the State then conceded, that the record is missing five documents: the arrest warrants for Appellant and Nkosi; the search warrant for the brothers' apartment and the affidavit that was submitted to obtain the search ...


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