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Lay v. State

Supreme Court of Georgia

April 29, 2019

LAY
v.
THE STATE.

          NAHMIAS, PRESIDING JUSTICE.

         Appellant Jonah Lay was convicted of two counts of felony murder and a firearm offense in connection with the shooting death of Jason Abram. Appellant contends that the evidence presented at his trial was insufficient to support his convictions, that venue was not sufficiently proved, that his trial counsel was ineffective in failing to object to certain testimony, and that he was not given the proper amount of time for his closing argument. As explained below, we reject Appellant's contentions, but because the trial court erred by entering convictions and sentences against him on two counts of felony murder for killing one victim, we vacate those convictions and remand the case for resentencing.[1]

         1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's trial showed the following. On January 31, 2001, Appellant lived at 1014 Dill Avenue, and Carol Smith lived down the street at 852 Dill Avenue, which is in Fulton County. Appellant and Smith had recently ended their romantic relationship, and Smith was dating Abram. That morning, Appellant called Smith's house. Abram, who was visiting Smith, answered the phone. Appellant asked to speak to Smith and then told her and Abram to get their guns ready because he was on his way to confront them.[2] Appellant then went to his room and got his revolver. He gave it to his cousin, Marcus Brown, and they walked out of the house together. When they got outside, Brown gave the gun back at Appellant's request. Brown stopped walking with Appellant before they reached Smith's house, because Brown knew Appellant "had a beef" with Abram and Appellant said he was "getting ready to do something."

         Down the street at Smith's house, Smith told Abram about Appellant's threat, and Abram said he was going to go outside to meet Appellant on the street to "keep him from coming to the house and talk to him." Smith's niece Erica, who was also in the house, asked Abram if he had a gun; he said, "yeah," pointed to his back pocket, and went outside. Smith also went outside, while Erica stayed inside and watched from the window. Smith and Erica both saw Appellant run down the street toward Abram carrying a gun. Smith heard gunshots, and she ran back into the house and looked out the window; she then saw Abram fall to the ground. She did not see either man fire. Erica saw Appellant fire his gun, hitting Abram and causing him to fall to the ground. She did not see Abram fire.

         She heard three shots.[3]

         Abram was hit twice, once in the arm and once fatally in the lower abdomen. First responders found him lying in the front yard of the house at 860 Dill Avenue; that house is the next house on Dill Avenue after Smith's house, although Graham Street runs between them. Abram was taken to a hospital, where he died. The police did not find a gun on or around Abram. The medical examiner concluded that both shots were fired at Abram from at least two feet away. The two bullets that struck Abram were .38-caliber metal-jacketed bullets fired from the same revolver. A .38-caliber metal jacket fragment, which matched the bullets removed from Abram, was found at the scene, as were eight 9mm cartridge cases.

         Immediately after the shooting, Appellant and Brown ran to a cousin's car nearby and drove away. In the car, Appellant said that he hoped he hit Abram but did not kill him. Some time later that day, Appellant called his brother and his brother asked if Appellant knew that he had killed Abram. Appellant answered, "I did? I hit him? Good. Good." The police spoke to Appellant's family and encouraged them to have him turn himself in, which he did later that evening. About a week before trial, Appellant sent his brother a letter asking him to recant his statement to the police that Appellant told Smith and Abram that Appellant was on his way and they should get ready.

         Appellant did not testify at trial. His defense was that Abram shot at him first and he was defending himself.

         2. Appellant argues that the evidence presented at trial required the jury to find that he acted in self-defense, but there was sufficient evidence for the jury to conclude that he was in fact the aggressor in the confrontation with Abram. See OCGA § 16-3-21 (b) (3) (stating that "[a] person is not justified in using force [in self- defense] if he . . . [w]as the aggressor"); Mosby v. State, 300 Ga. 450, 452 (796 S.E.2d 277) (2017) ("An aggressor is not entitled to a finding of justification."). Appellant warned Smith that he was coming to the house where she was with Abram and that they should be ready with guns. Then he armed himself and hurried down the street to confront Abram, telling Brown that he was "getting ready to do something." Smith and Erica saw Appellant approach Abram carrying a gun, and Erica then saw Appellant fire first. After killing Abram, Appellant fled the scene, expressed satisfaction that he had shot Abram, and tried to get his brother to lie about the events leading to the shooting.

         Although Brown testified that Abram drew and pointed his gun first and Appellant's friend testified that Abram fired the first shot, that testimony would not necessarily mean that Appellant was not the initial aggressor, and the jury was entitled to disbelieve that testimony entirely. Indeed, Brown had changed his story about being able to see who fired first, and Appellant's friend seemed to change his story about Abram falling down before he fired back at Appellant. See Lowe v. State, 298 Ga. 810, 812 (783 S.E.2d 111) (2016) (explaining that a jury is free to disbelieve the defendant's evidence of self-defense); 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)). See also Mosby, 300 Ga. at 455 ("That [the appellant] fired the fatal shot while trying to get away from the gunfight she started does not change the analysis regarding the lack of justification of a defendant who was shown to be the aggressor."). When viewed in the light most favorable to the jury's verdicts, the evidence presented at trial was legally sufficient to authorize the jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was found guilty. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         3. Appellant also argues that the State did not sufficiently prove that the crimes happened in Fulton County. "'[V]enue is a jurisdictional fact the State must prove beyond a reasonable doubt in every criminal case.'" Worthen v. State, 304 Ga. 862, 865 (823 S.E.2d 291) (2019) (citation omitted).

         As discussed earlier, the evidence at trial showed that Smith lived at 852 Dill Avenue, which is in Fulton County, and the deadly confrontation occurred very near that address; Abram was found lying in the front yard of 860 Dill Avenue, which is across a street from Smith's house. Although there was no direct testimony that the location where the fatal injury was inflicted is also in Fulton County, "[t]he State may meet its burden at trial using either direct or circumstantial evidence." Id. The jurors could reasonably infer from the proximity of the crime scene to 852 Dill Avenue that it too is in Fulton County, particularly as there was no evidence or even argument that the crime scene is near a county line. See id. at 874. "Ordinary Georgians understand from their everyday experience that it is highly unusual to cross a county line when they merely walk across the street." Id. at 868 n.3.[4] Accordingly, the evidence presented at trial was sufficient to prove that Appellant's crimes were committed in Fulton County as charged.

         4. At trial, the lead detective on the case, Jim Rose, testified that he was not at the police station when Appellant turned himself in, but Detective Michael Anthony called to brief him on the situation. Detective Rose gave this account of the call, without objection:

[Detective Anthony] asked me if I was going to come in, and at first I told him yes, I would come in, because [Appellant] had signed a waiver, which meant waiver of counsel, that he wanted to speak to - to us in reference to this incident. And then I received, I believe, a second phone call a minute or two after that, and I was advised by Detective Anthony that [Appellant] had changed his mind, and he did not want to speak to us, he wanted to speak to his attorney first. At that point ...

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