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Myrick v. State

Supreme Court of Georgia

October 7, 2018

MYRICK
v.
THE STATE.

          NAHMIAS, PRESIDING JUSTICE.

         Appellant Andre Myrick was convicted of felony murder and a firearm offense in connection with the shooting death of Kenneth Bevis. On appeal, he argues that the trial court erred by denying his Batson challenge as to three prospective jurors. He also argues that the court erred by denying his request for a mistrial after the jury heard a police detective refer to statements made by a witness who died before the trial and that the State committed prosecutorial misconduct by introducing this evidence. We affirm.[1]

         1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's trial showed the following. On the morning of July 6, 2013, Bevis left his apartment in Atlanta, where Andrea Barry was sleeping, and picked up Kari Staymosse from the hotel where she was living. Bevis and Staymosse planned to use crack cocaine together. They stopped at a convenience store to get supplies for their crack pipe and then went to Bevis's apartment. When they arrived there around noon, Appellant and Barry were standing in the living room near the front door. Bevis and Staymosse knew Appellant, because they would sometimes use drugs together and Appellant used to live in Bevis's apartment building.

         Barry said to Bevis and Staymosse, "Thank God you are here"; she then retreated to the bedroom. Bevis asked Appellant what he was doing there and said, "You are not welcome. Please leave." In response, Appellant pulled out a gun and said, "I'm not going nowhere." Bevis put his hands up and sat down on the couch; Staymosse sat in a chair across from him. Appellant was talking very fast, sweating, and seemed "pretty sh[a]ken up." While Appellant was "ranting and raving" for about three minutes, Bevis kept his head down, shaking it. Then Appellant told Bevis, "Because of you, I will never see my daughter again," and shot Bevis in the chest.[2] After the gunshot, Barry, who had remained in the bedroom, jumped out of the bedroom window, causing a loud crash. When Appellant heard it, he fled the apartment. Staymosse immediately called 911. Barry, who had run to a nearby business, got an employee there to call 911 as well.[3]

         When the police arrived, Bevis was dead. His body was slumped between the couch and coffee table. He had been shot once in the chest; the bullet's trajectory was consistent with the gun's being positioned higher than his chest. Staymosse identified Appellant as the shooter, described him, and picked him out of a photo lineup.[4]

         At 12:21 p.m., about 15 minutes after the shooting, Leslie Breland called 911 to report that she had seen a man walking swiftly through her backyard, which was surrounded by a six-foot-high wooden fence, then through her garage and down her driveway. Two boards on the fence had been pulled up to create a hole in the fence. When the police arrived, they could not find the man. Breland was later shown a photo lineup and identified the photograph of Appellant, whom she did not know, as the man who walked through her yard. When measured through the woods behind Breland's yard, the distance to Bevis's apartment building was less than 700 feet. Around 6:00 p.m., another person called 911 and reported seeing a man who matched Appellant's description coming out of the bushes onto the road. That spot was about seven-tenths of a mile on foot from Bevis's apartment building. Police responded to that call quickly and located Appellant walking a short distance down the road. He was taken to the police station and interviewed.

         Appellant told the police the following story. At the time of the murder, he was sleeping in Room 181 at the Cheshire Motor Inn. He woke up at 1:00 p.m., went to the InTown Suites to visit friends from 1:00 to 3:00 p.m., and then went to Midtown Bowling from 3:00 to 6:00 p.m. While there, he ordered a sandwich called a Big Nasty. Appellant said that although he was friends with Bevis, the last time they had seen each other was about two weeks earlier.

         The path between the Cheshire Motor Inn and the InTown Suites would not have taken Appellant through the yard where Breland saw him. The police also determined that a man who had never met Appellant rented Room 181 from July 4 to July 6; although he left at 2:00 p.m. on July 5, so he was not there during the night before the murder, he did not check out and the room was not rented to anyone else. And no one purchased a Big Nasty sandwich at Midtown Bowling between 3:00 p.m. and 6:00 p.m. on the day of the murder.

         In addition, cell phone records showed that on July 3, three days before the murder, Appellant called Bevis seven times between 6:30 and 6:54 p.m. The next day, Appellant called Bevis seven more times between 9:04 and 11:40 p.m. Most of these calls were less than a minute, which a detective testified usually indicates that the call went to voicemail. The longest call lasted one minute and one second. Appellant did not call Bevis again, but at 12:11 a.m. on July 5, he sent a text message to Bevis saying, "I got those 50 $ grams now and its good." Bevis responded, "You need to lose this phone number I don't need idiots hanging around me." Appellant answered, "I understand buddy but that was when i was getting high and this is now . . . things r getting back to the way i was mentall. But I must admit that somebody f**ked . . . Me up! Somebody put something in my drink or food or something & i think i knw who it was but they r gone."

         Appellant did not testify at trial, but his video-recorded interview was played for the jury. His main defense theory was that the police did not do a thorough investigation, particularly because they relied so heavily on the word of Staymosse rather than treating her as a suspect.

         Appellant does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is this Court's usual 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 sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of felony murder and possession of a firearm during the commission of a felony. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). 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)).

         2. (a) At the end of jury voir dire, Appellant raised a challenge under Batson v. Kentucky, 476 U.S. 79 (106 S.Ct. 1712, 90 L.Ed.2d 69) (1986), based on the State's use of six of its eight peremptory strikes for jury members and both of its two peremptory strikes for alternates on prospective jurors who were African-American, meaning that the State used eight out of ten of its strikes (80%) on a group that made up only 36% of the jury venire. The trial court ruled that Appellant had made a prima facie case. The prosecutor then explained his reasons for each of the eight challenged strikes. Appellant conceded that the reasons for three of the State's strikes were race-neutral, and on appeal he does not challenge two other strikes.

         As to the three strikes Appellant challenges here, the prosecutor offered the following reasons. Juror 9 was very young and once had her driver's license suspended for missing school. Juror 13 had a physical disability that could make it hard for him to sit for long periods, he was convicted of misdemeanor drug charges five years earlier, and his driver's license had been suspended. Juror 20 did not provide much information in response to questions and seemed uncomfortable talking about her aunt's and uncle's use of heroin and crack cocaine, and the prosecutor "did not get a good vibe from her."

         Appellant disputed each of these reasons. He argued that one of the jurors accepted by the State, who Appellant acknowledged was African-American, was close in age to Juror 9. Appellant argued that Juror 13 said his disability would not prevent him from serving and that another juror (also African-American) had a DUI, which would have included a license suspension. As to Juror 20, Appellant argued that two other jurors did not provide many answers on their questionnaire and another was soft-spoken. He further argued that Juror 20 ...


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