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Taylor v. State

Supreme Court of Georgia

June 24, 2019

TAYLOR
v.
THE STATE.

          BENHAM, JUSTICE

         Appellant Davious Letron Taylor appeals his convictions for murder and possession of a weapon during the commission of a crime arising out of the shooting death of Onterio Perez Dorsey.[1]

         1. Appellant contends the evidence was insufficient to convict him. We disagree. Viewed in a light most favorable to upholding the jury's verdicts, the evidence shows as follows.

         The Events of June 20, 2009

         Kelvin Sheats testified that, on June 20, 2009, he drove Dorsey to an apartment complex so that Dorsey could conduct a drug transaction. Sheats stayed in his vehicle, while Dorsey exited. Sheats testified that Dorsey walked behind one of the apartment buildings and came back with two other African-American men whom Sheats said he had never seen before. Sheats described the two men, who appeared to be in their 20s, as follows. One man was tall and slender, light-skinned, had low-cut hair, and was wearing shorts and a t-shirt. Sheats testified he looked straight at the tall man and saw his whole face during the incident. The other man was shorter and stockier, dark-skinned, had low-cut hair, and was wearing jeans and a white shirt. Sheats stated the three men used a large, green electrical box sitting between two apartment buildings to transact the deal, including setting up a scale. At some point during the transaction, Sheats heard the tall, light-skinned man tell Dorsey to "give it up." Sheats testified that Dorsey, in response to that command, pulled out the items he had inside of his pockets and placed them on the green utility box. Sheats testified the tall, light-skinned man shot Dorsey in the chest with an old revolver in spite of Dorsey's compliance with the tall, light-skinned man's command. At trial, Sheats identified appellant as the person he saw shoot Dorsey, and identified Banks as the shorter and stockier man he saw that day.[2]

         Brandon Jones, who lived in an apartment across the street from where the incident occurred and who knew appellant and Banks, [3] testified he was walking by when he saw the car Sheats was driving pull up and saw a man wearing a baseball cap exit the vehicle. Jones testified that he saw appellant and the man wearing a baseball cap standing at the green electrical box.[4] Jones testified he continued walking to his apartment and, just as he had made it to his porch steps, heard a gunshot. Jones said he looked around and saw appellant with a gun in his hand standing over the man wearing the baseball cap. Jones identified appellant in court as the person who shot the man wearing the baseball cap. Jones also testified that appellant was taller than Banks.

         Sheats testified the perpetrators ran behind the apartment buildings after the shooting. Jones testified that he ran away as well.[5] Dorsey, who was wounded, ran back towards Sheats and collapsed. Sheats testified he screamed for help. A woman, who was sitting in her vehicle in the parking lot at the time, testified she heard Sheats' cries for help, went to investigate, and saw Sheats holding a wounded man in his arms. The woman testified she called 911. The medical examiner testified that Dorsey died from a gunshot wound to the torso.

         The Police Investigations

         There were two police investigations regarding these crimes - one that occurred in 2009 and one that occurred in 2013. Immediately after the shooting in 2009, Sheats could only describe the perpetrators' physical appearance because he did not know them. However, police received some leads by telephone. Audrina Taylor, who knew Dorsey personally through her husband[6] and through one of Dorsey's cousins, testified she called the police a day or two after the June 20 shooting occurred to tell them that Banks and "Foot," which several trial witnesses testified was appellant's nickname, were involved in the shooting. Audrina Taylor also provided a phone number for Banks.[7] On June 23, which was three days after the shooting occurred, police showed Sheats a six-person photographic lineup, which included appellant's photograph. At that time, Sheats did not identify appellant as a perpetrator; but rather identified another man whose photograph had been randomly placed into the lineup by the computer software program tasked with generating the lineup. Hours after making the identification, Sheats told police he was unsure about his selection.[8] On cross-examination, Jones testified that, although he left the apartment community within days of the shooting, [9] he did talk to police, in the company of his parents, about a month later because the police left a card at his mother's apartment. Jones testified that he did not give a detailed statement, but that he did tell the detective that "Foot" was involved in the crime. However, by the time police talked to Jones, Sheats had already made his faulty identification. The case went cold for several years until a new lead investigator took over investigating the case on April 4, 2013.

         The new lead investigator testified that he reviewed the list of suspects and witnesses identified in 2009 and conducted some interviews.[10] On April 14, 2013, the new investigative team presented three different photographic lineups to Sheats. One lineup contained appellant's picture, a second lineup contained Jones' picture, and a third lineup contained the photograph of another possible suspect in the case. Out of the 18 different pictures he reviewed, Sheats identified appellant as the person who shot Dorsey.[11] On June 24, 2013, the police interviewed Jones again about the June 2009 shooting.[12] Jones, who was more detailed when questioned in 2013, told police he saw appellant shoot Dorsey.[13]Jones testified that after he spoke to police in 2013 about Dorsey's shooting, he ran into appellant on multiple occasions while they were both incarcerated. Jones testified that on at least one of these occasions, appellant threatened Jones about talking to the authorities.[14] The new lead investigator testified he took out an arrest warrant for appellant on June 26, 2013.

         The evidence as summarized above was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Appellant contends the trial court erred when it admitted extrinsic act evidence pursuant to OCGA § 24-4-404 (b) (Rule 404 (b)).[15]

Since the enactment of the new Evidence Code, this Court has been called upon in a number of cases to examine the method by which lower courts are to determine the admissibility of evidence offered under Rule 404 (b) of other acts committed by the accused to prove intent. [Cits.] "A trial court's decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion." State v. Jones, 297 Ga. 156, 159 (1) (773 S.E.2d 170) (2015). For other acts evidence to be admissible, the moving party must satisfy a three-pronged test by showing: (1) that the evidence is relevant to an issue other than the defendant's character, (2) that the probative value is not substantially outweighed by [the danger of unfair] prejudice, and (3) that there is sufficient proof from which the jury could find the defendant committed the other act. See Booth v. State, 301 Ga. 678, 682 (3), (804 S.E.2d 104) (2017).

Manning v. State, 303 Ga. 723 (2) (814 S.E.2d 730) (2018). The three-pronged test applies whether the extrinsic acts occurred before or after the charged crimes occurred. See United States v. Jernigan, 341 F.3d 1273, 1283-1284 (11th Cir. 2003).[16]

         The record shows that on December 30, 2015, the State filed notice that it intended to submit evidence of extrinsic acts involving appellant, including a 2011 incident involving aggravated assault and possession of a weapon. Ten days before trial commenced on April 18, 2016, the State supplemented its notice to include a 2008 incident involving drug possession. During a pre-trial hearing, the State asserted it was offering the extrinsic acts to show motive, intent, knowledge, and preparation and plan. Appellant objected on the grounds that the State's notices did not expressly state what the extrinsic acts were being proffered to show (motive, intent, etc.), that the evidence did not support any factors the State was purporting to show, and that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. At the close of the pretrial hearing, the trial court ruled that the evidence was relevant and not barred by the danger of unfair prejudice, holding it could be admitted at trial for all of the purposes asserted by the State.

         As to the 2008 incident, a police officer testified that appellant was arrested at a house where illegal drugs were found. The 2011 incident occurred on July 30. Rondriecko Nash, who was the victim of that incident, testified that he was at a Clayton County hotel that day with his brother "probably . . . out there selling drugs or something," when he was shot in the stomach because he was talking to a woman who had a boyfriend. Nash testified he could not recall who the shooter was, but a police officer, who investigated the shooting, testified Nash identified appellant as the shooter when presented with a photographic lineup that included appellant's photograph. Appellant pleaded guilty to the 2011 incident and received a five-year sentence (two years in jail and three years on probation). After the State completed its case-in-chief, the trial court granted appellant's motion to strike the evidence concerning the 2008 incident and instructed the jury to disregard it. Because the testimony regarding the 2008 incident was stricken and it is presumed the jury followed the trial court's instruction to disregard it, [17] our review is limited to the 2011 incident.

         Assuming without deciding that the admission of the Rule 404 (b) evidence was erroneous, any error was harmless. "'The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.'" (Citation omitted.) Smith v. State, 299 Ga. 424 (2) (d) (788 S.E.2d 433) (2016). When applying harmless error analysis, we review the evidence de novo and weigh it as a reasonable juror would, rather than reviewing it in a light most favorable to upholding the jury's verdicts of guilty. See Fletcher v. State, 303 Ga. 43 (II) (810 S.E.2d 101) (2018).

         The trial record shows the State spent a minimal amount of time eliciting evidence concerning the 2011 incident, presenting just two witnesses who took the stand briefly, and there is no contention that the State mentioned or relied upon the incident during its closing argument to the jury. [18] See, e.g., Jackson v. State, 2019 WL 2332554, ___Ga.___ (2) (c) (___ S.E.2d ___) (June 3, 2019) (erroneously admitted Rule 404 (b) evidence was not harmful in part because there was no contention the State mentioned it in closing). Compare Thompson v. State, 302 Ga. 533 (III) (A) (807 S.E.2d 899) (2017) (error was not harmless in part because the State emphasized erroneously admitted Rule 404 (b) evidence in closing). Although appellant pleaded guilty to the 2011 incident, the impact of the evidence was diminished by the fact that Nash testified on direct examination that he could not recall if appellant was the person who shot him in the stomach five years earlier. Also, because appellant had already been punished for the 2011 crime by the time his trial for Dorsey's shooting commenced in 2016, it is less likely a reasonable juror would have been inclined to punish him again for that crime, particularly where, as here, the trial court properly instructed jurors about the use of the Rule 404 (b) evidence.[19]

         While Sheats failed to identify appellant as the shooter in 2009, Jones and Audrina Taylor reported to police close in time to Dorsey's shooting that a person nicknamed "Foot" was involved.[20] Although the defense impeached Jones with convictions he incurred after 2009, his identification of appellant as being involved in Dorsey's killing in 2009 during an interview in which he was a teenage boy accompanied by his parents, was consistent with his 2013 identification when police interviewed him as an adult inmate in the Clayton County jail. In addition, there was evidence that appellant was upset by Jones' talking to police about the 2011 shooting and threatened Jones while they crossed each other's paths in jail. Such conduct was indicative of appellant's consciousness of guilt for Dorsey's killing. See Cunningha ...


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