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Thompson v. State

Supreme Court of Georgia

June 29, 2018

THOMPSON
v.
THE STATE.

          NAHMIAS, Justice.

         Appellant Damarius Thompson challenges his convictions for malice murder and other crimes in connection with the shooting death of Joshua Richey. Appellant, who is representing himself on appeal, enumerates a variety of claims. Our review of the record, however, reveals no reversible error, so we affirm.[1]

          1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On March 10, 2015, Richey and his friend Jason Shelton were working a construction job near a Kroger grocery store on Ponce De Leon Avenue in Atlanta. Richey had parked his pickup truck in the Kroger parking lot, and Shelton did the same with his truck. Around 2:00 p.m., Richey and Shelton were sitting at their work site about 75 feet away from their trucks when Shelton saw a man tinkering with the passenger door handle of his truck and another man wearing yellow sitting in Richey's truck. He and Richey ran towards the parking lot, and Richey slapped the driver's side window of his truck with his hand. The man in Richey's truck shot a bullet through the closed door, hitting Richey in the chest; got out of the truck and into a two-door black BMW sedan with tinted windows and a red and white temporary license plate that was parked between the trucks; and fled with the other man driving. Richey died from his gunshot wound moments later. The bullet that killed him was fired by a gun consistent with the .357 Glock pistol that he kept in the middle console of his truck; a box of .357 bullets was found in the truck. A .357 shell casing was also found at the scene, but Richey's gun was not found.

         The police obtained a video recording of the shooting from one of Kroger's surveillance cameras, and the recording was broadcast on the local news. The next day, Shenia Gaither saw the surveillance video on the news and told the police that she recognized the BMW, which her roommate Theresa Gurley had purchased the day before the murder. When the police went to Gurley's home, they found a BMW parked in her driveway that matched the getaway car seen in the surveillance video. A detective interviewed Gurley, who said that on the day of the shooting, she lent the BMW to her friend "Mean." Gurley later identified "Mean" as Appellant in a photo lineup. In the backseat of the BMW, the police found a Powerade bottle that testing later showed had Appellant's fingerprints and DNA on it. The police also found Appellant's fingerprint on the driver's side door of Richey's truck.

         During a later interview with the police, Gaither said that on the day after the shooting, she saw Gurley and "Mean" - whom she also identified as Appellant in a photo lineup - burning yellow clothing in Gurley's garage and wiping down the BMW. The police had noticed burn marks and soot in the garage and had smelled a "fresh burn" and bleach. Gaither also said when she told Appellant that she had seen him in the surveillance video, he told her that he shot Richey because "[Richey] got too close."

         The police arrested Appellant on March 26, 2015. Cell phone records showed that his phone was near the Kroger at the time of the shooting and near Gurley's house on the day after the murder. The State also presented evidence that Appellant previously had been convicted for illegally entering an automobile in a retail parking lot. Appellant did not testify at trial, where he represented himself after the jury was selected. The surveillance video, which was played for the jury, does not clearly show the assailant, and Appellant's primary defense was that he was not the shooter depicted on the recording.

         2. Appellant contends that the evidence presented at trial was legally insufficient to support his convictions for malice murder, armed robbery, felony murder based on entering an automobile, and tampering with evidence, and that the trial court erred in denying his motion for a directed verdict of acquittal as to those charges and felony murder based on armed robbery.[2] Appellant argues that there was no evidence that he killed Richey with malicious intent or that he took anything from Richey; he also complains that the tampering conviction was based solely on Gaither's testimony. But the State's evidence showed that Appellant broke into Richey's truck, leaving his fingerprint on the door; took Richey's pistol from the console and shot Richey with it when Richey ran up to the truck to confront him; fled in the BMW seen on the surveillance video, which he had borrowed from Gurley, taking the pistol with him; burned the clothes he was wearing that day and wiped down the getaway car; and admitted to Gaither that he killed Richey because he "got too close."

         "'[E]vidence that the defendant acted where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart'" is sufficient to establish the malice required for a malice murder conviction. Moran v. State, 302 Ga. 162, 164 (805 S.E.2d 856) (2017) (citation omitted). Moreover, "[t]he testimony of a single witness is generally sufficient to establish a fact," and "[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence." Moss v. State, 298 Ga. 613, 614 (783 S.E.2d 652) (2016) (citations and punctuation omitted). Thus, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational trier of fact to find Appellant guilty beyond a reasonable doubt of all of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). The Jackson standard also applies to a challenge arising from the denial of a motion for a directed verdict of acquittal, see Humphrey v. State, 252 Ga. 525, 527 (314 S.E.2d 436) (1984), and we therefore also conclude that the trial court did not err in denying that motion.

         3. Appellant claims that his convictions are void because the record does not show that his indictment was returned in open court. In Georgia, a grand jury indictment must be returned in open court, and the failure to do so is per se injurious to the defendant. See State v. Brown, 293 Ga. 493, 494 (748 S.E.2d 376) (2013). The evidence presented at the motion for new trial hearing, however, belies Appellant's claim (even assuming that he did not forfeit it by failing to raise it in a timely plea in abatement, see OCGA § 17-7-110).

          At the hearing, a supervisor in the Fulton County Superior Court Clerk's Office testified that under the court's procedure, true bills of indictment are presented to the presiding judge in open court and no true bill is given a case number unless that procedure has been followed. Appellant's indictment shows the handwritten word "true" in front of the word "bill," the handwritten date, the grand jury foreperson's signature, and the stamped date the indictment was filed in the superior court; his case then received a case number from the clerk's office. The trial court found from this evidence, which Appellant did not dispute, that his indictment was in fact returned in open court. His claim therefore fails. See Chelsey v. State, 121 Ga. 340, 344 (49 SE 258) (1904) (holding that testimony rebutting the defendant's claim that the indictment was not returned in open court was sufficient even though the court's minutes failed to show the return of the indictment); White v. State, 312 Ga.App. 421, 428 (718 S.E.2d 335) (2011) ("There is no express requirement that the indictment contain a written statement that it was received in 'open court,' or that it be signed.").

         4. Appellant also contends that he was not properly arraigned. He asserted this claim in two motions in arrest of judgment, which were both filed in the trial court on July 12, 2016. The court correctly dismissed those motions as untimely. Under OCGA § 17-9-61 (b), a motion in arrest of judgment "must be made during the term at which the judgment was obtained." Appellant's convictions were entered on May 10, 2016, during the trial court's May 2016 term, which ended on July 3. See OCGA § 15-6-3 (3) (Fulton County terms of court). One of Appellant's motions was postmarked on July 1, but that does not help him, because both motions were filed with the clerk of court after the May term had ended and were therefore untimely. See Roberts v. Cooper, 286 Ga. 657, 660 (691 S.E.2d 875) (2010) (reiterating that the "mailbox rule" applies only to pro se inmates in habeas corpus appeals). Because the motions in arrest of judgment were untimely, we do not address their merits. See Mitchell v. State, 282 Ga. 416, 418-419 (651 S.E.2d 49) (2007).

         5. One of the jurors for Appellant's trial notified the court during voir dire that she knew the State's witness Theresa Gurley, who was one of her physical therapy patients. The juror then told the court that she was "creep[ed] out" by the possibility that Appellant would know where she worked based on her answers to the voir dire questions. Appellant now asserts that his trial counsel (who represented him until the end of jury selection) provided ineffective assistance in failing to challenge the juror for cause. To prevail on this claim, Appellant must show that his counsel's performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of his trial would have been more favorable to him. See Strickland v. Washington, 466 U.S. 668, 687, 694 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). Appellant has failed to carry his burden as to both prongs of the Strickland test.

         At the motion for new trial hearing, trial counsel testified that he consulted with Appellant during jury selection and that Appellant had not wanted to strike this juror. See Taylor v. State, 302 Ga. 176, 178 (805 S.E.2d 851) (2017) ("[T]he decision as to which jurors to strike is a strategic decision that, if reasonable, will not support an allegation that counsel's performance was deficient."). Moreover, there is no indication that a challenge for cause would have been successful. After the juror indicated that she knew Gurley, the prosecutor questioned her, and the juror said that her professional relationship with Gurley would not affect her assessment of the evidence and that her concerns that Appellant would know where she worked would not affect her verdict. Because the record shows that the juror had not formed a "fixed and definite" opinion as to Appellant's guilt, he cannot prove that he was prejudiced by trial counsel's failure to move to strike her for cause. See Bester v. State, 294 Ga. 195, 196 (751 S.E.2d 360) (2013) (explaining that a juror's knowledge of or relationship with a witness is a basis for disqualification only if it has created in the juror a fixed opinion of guilt or innocence or a bias for or against the accused).

         6. When Gurley testified at trial, many of her responses were inconsistent with what she had told the police about Appellant during her recorded interview; she also claimed that she did not recall a number of incriminating statements about Appellant that she made during the interview. The State then presented evidence of Gurley's prior inconsistent statements through the testimony of the detective who had interviewed her and by playing relevant portions of the recording.[3] Appellant's hearsay objections to this evidence were overruled. He now contends that the hearsay rulings were erroneous and also claims that the playing of the recording improperly bolstered the detective's testimony, that the prior inconsistent statements were "beyond the scope ...


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