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Roberts v. State

Supreme Court of Georgia

February 18, 2019

ROBERTS
v.
THE STATE.

          Warren, Justice.

         Dameino Roberts was convicted of felony murder during the commission of an aggravated assault with a deadly weapon and possession of a firearm during the commission of a crime in connection with the shooting death of Jhalil King.[1] On appeal, Roberts contends that the evidence was insufficient to sustain his convictions, that the trial court erred by excluding certain testimony and by expressing an opinion on certain evidence in violation of OCGA § 17-8-57, and that Roberts was denied the effective assistance of counsel. We disagree and affirm.

         1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at Roberts's trial showed that on the night of September 26, 2014, Jhalil King was at a nightclub with Ciara Lewis, who previously had a romantic relationship with Roberts. Roberts was also there and began an argument with King. At some point, the two men left the club and walked across the street, where they began "tussling," punching, and "flipping" one another. Although King was not serious about the fight at first, he ultimately won.

         At some point after the fight, Lewis went across the street from the nightclub and sat in a car with King. Both Lewis and a second eyewitness testified that later that night, while King and Lewis sat together, Roberts came around a nearby building, approached the car on King's side, "slung" his arm in the car, and said "[d]on't nobody move." Roberts then fired several gunshots, one of which fatally wounded King. Roberts did not reach into the car to take anything out of King's pockets. Instead, Roberts ran away and fired additional shots back towards the car. Footage from a surveillance camera confirmed that a person, whom officers could not identify from the video, walked up to the side of the car and quickly ran away.

         The next day, Roberts cut off his dreadlocks after he learned that the police were looking for him. Then, in October 2014, when two police officers were searching at night for a suspect in an unrelated crime, one officer shined a flashlight on Roberts, who was walking along the side of a road. He ran into some nearby woods, and the officers chased him and commanded him to stop. After chasing Roberts for about 100 yards, the officers found Roberts hiding in a large drainage pipe.

         2. Roberts contends that the evidence was insufficient to support his convictions because no physical evidence placed him at the car; surveillance video that was admitted into evidence did not clearly depict the shooter; and there were a number of reasons to doubt the reliability of the two eyewitnesses who identified Roberts as the shooter.

         When evaluating a challenge to the sufficiency of the evidence, we view all of the evidence presented at trial in the light most favorable to the verdict and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 318-319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). Our review leaves to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be made from the evidence. See id.; Menzies v. State, 304 Ga. 156, 160 (816 S.E.2d 638) (2018). "'As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.'" Williams v. State, 287 Ga. 199, 200 (695 S.E.2d 246) (2010) (citation omitted). Moreover, "the State was not required to produce any physical evidence," video or otherwise, "and it was for the jury to determine the credibility of the eyewitnesses." Jackson v. State, 301 Ga. 866, 867 (804 S.E.2d 367) (2017). After reviewing the record of Roberts's trial, we conclude that the evidence presented against him, as summarized in Division 1, was sufficient to authorize a rational jury to find beyond a reasonable doubt that Roberts was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. at 318-319.

         3. Roberts also contends that the trial court abused its discretion when it refused to admit evidence of a dice game under OCGA § 24-4-404 (b) ("Rule 404 (b)"). Specifically, Roberts sought to admit evidence under Rule 404 (b) that-at an illicit dice game around the block from the nightclub a week before King's murder-King, Roberts, and others who frequented the area were present, there was a heated argument, and King pulled a gun on one of the participants other than Roberts. Roberts argued that this evidence, together with the fact that thousands of dollars in cash changed hands during the dice game, was admissible as proof that a third person had as much motive to kill King as Roberts had. The trial court ruled that Rule 404 (b) was not applicable and that testimony that King pointed a gun at someone a week before his own murder "is simply not relevant." We conclude that the trial court did not abuse its discretion by excluding the testimony Roberts sought to admit.[2]

         Under Rule 404 (b), "'(e)vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith,' but such evidence is admissible for other purposes, including to prove intent and motive." Kirby v. State, 304 Ga. 472, 479 (819 S.E.2d 468) (2018). See also Fletcher v. State, 303 Ga. 43, 46 (810 S.E.2d 101) (2018) ("Rule 404 (b) 'prohibits the admission of such evidence when it is offered solely for the impermissible purpose of showing a defendant's bad character or propensity to commit a crime.'" (citation omitted; emphasis in original)). Typically, prosecutors use Rule 404 (b) to introduce evidence of a defendant's "other acts" that the State contends are admissible for some purpose other than to prove bad character. See Fletcher, 303 Ga. at 46-47 (evaluating whether 404 (b) evidence is "relevant to an issue other than defendant's character") (emphasis supplied). In this case, however, the defendant tried to use Rule 404 (b) to admit evidence that a third person may have committed the crimes. In so doing, Roberts proffered evidence of the victim's "other crimes, wrongs, or acts" to prove the motive of an unidentified third person.

         We need not decide, however, whether Rule 404 (b) applies in these circumstances, because "[t]he paramount prerequisite to admissibility of any evidence at trial, including Rule 404 (b) evidence, is that it be relevant." Drews v. State, 303 Ga. 441, 448 (810 S.E.2d 502) (2018). Indeed, even when evidence of other acts is relevant and offered for a proper purpose under Rule 404 (b), it still may be excluded under OCGA § 24-4-403 ("Rule 403") "'if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.'" State v. Jones, 297 Ga. 156, 158 (773 S.E.2d 170) (2015) (quoting Rule 403). In short, if the evidence of other acts fails to meet the admissibility requirements contained in OCGA § 24-4-401 ("Rule 401") through Rule 403, then such evidence is inadmissible as a threshold matter.

         That is what happened here: Roberts attempted to offer evidence that King pulled a gun on a third person at the dice game, but failed to show how that evidence met basic admissibility requirements. This Court has followed the general rule that, before testimony can be introduced that another person committed the charged crime, the proffered evidence must raise a reasonable inference of the defendant's innocence and, in the absence of a showing that the other person recently committed a crime of the same or similar nature, "'must directly connect the other person with the corpus delicti.'" Moss v. State, 298 Ga. 613, 616 (783 S.E.2d 652) (2016) (decided under the new Evidence Code, but quoting an old Evidence Code case, Klinect v. State, 269 Ga. 570, 573 (501 S.E.2d 810) (1998)). In Moss v. State, for example, this Court rejected under Rule 403 the admissibility of evidence of the commission of the crime by a third party that was "'based purely on rumor, speculation, and conjecture.'" Moss, 298 Ga. at 616 (citation omitted). See also De La Cruz v. State, 303 Ga. 24, 28 (810 S.E.2d 84) (2018) ("[E]vidence that merely casts a bare suspicion on another or raises a conjectural inference as to the commission of the crime by another is not admissible." (citation and punctuation omitted)). We have also held that it was not error to exclude a prior act of violence by the victim against a third party that was offered to prove that the third party had a motive to kill the victim, where the defendant "did not establish identity of this third party, and merely offered speculation and conjecture that the third party could have been involved in the crimes at issue." Boatman v. State, 272 Ga. 139, 140-141 (527 S.E.2d 560) (2000). See also, e.g., Wade v. Mantello, 333 F.3d 51, 60 (2d Cir. 2003) ("That a third party may have borne animus towards the victim, standing alone, does little to establish that the third party committed the crime. . . . [The proffered] testimony would at most have suggested that a third party had motive to murder [the victim], but neither the testimony nor the defense proffer tended to show that this third party had the opportunity to commit the murder. And even if opportunity could be inferred, nothing linked this third party to [the] murder.").

         Here, Roberts did not show how the evidence he sought to admit was relevant under Rule 401 by offering, for example, that the third person who supposedly had a motive to kill King was also present at or near the nightclub on the night of the murder. See De La Cruz, 303 Ga. at 27-28 (trial court did not err in excluding evidence that a third person assaulted a different victim sometime in the past at the same location where the murder occurred because that evidence did not directly connect the third person to the corpus delicti and did not raise a reasonable inference of the defendant's innocence because there was no evidence that the third person was at that same location on the night of the murder). Cf. Gilreath v. State, 298 Ga. 670, 673-674 (784 S.E.2d 388) (2016) (trial court abused its discretion by prohibiting the defendant from questioning a witness about a prior allegation of child abuse by a third person where that third person was the only adult other than the defendant in the home of the child victim on the day the child's death occurred, and the proffered evidence would have raised a reasonable inference of the defendant's innocence). Indeed, Roberts named that third person for the first time at the hearing on his motion for new trial, at which time he provided only a nickname. Roberts has offered nothing more than speculation and conjecture that a third person could have been involved in King's murder, and-regardless of the applicability of Rule 404 (b)-the trial court did not abuse its discretion in excluding evidence that King pulled a gun on a third person at the dice game. See Moss, 298 Ga. at 616; Boatman, 272 Ga. at 140-141.

         4. Roberts next contends that the trial judge committed plain error when he violated OCGA § 17-8-57 by commenting on the evidence of a surveillance video that was played for the jury at trial. See OCGA § 17-8-57 (a) (1) ("It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge's opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused."). We disagree.

         The surveillance video played at trial was about one minute long and showed that a person walked up to-and then quickly ran away from-King's side of the car. After the video was played the first time, the trial judge ordered that it be played again. Before it was played a second time, however, the judge instructed the jury that "this is not one of these items that you're going to be allowed to have a computer and the tape and look back and forth and back and forth at a hundred times, so understand that it's going to be important that you get your sense of whatever you are to glean from this video tape here in the courtroom." The video was then played a second and a third time. Afterwards, a second clip, which "zoomed in on the picture," was also played two times.[3]The trial judge immediately instructed the jury that "I do not have that video played for you to emphasize that over any other evidence, I just knew that . . . it was a bit grainy, it was hard to make out some images and I wanted to give you an opportunity to first get a sense of what you're looking at and then look at whatever level of detail you thought relevant, if at all."

         Roberts argues that the judge's first instruction indicated that the jury should pay special attention to the video as compared to other evidence. This emphasis on the importance of the video, Roberts contends, amounted to an opinion on the weight of the evidence and hinted that, contrary to the defense of mistaken identity that Roberts ...


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