Allen v. State

• Decision Date: 06 February 2017
• Docket Number: S16A1528
• Citation: 796 S.E.2d 708,300 Ga. 500
• Parties: ALLEN v. The STATE.
• Court: Georgia Supreme Court

300 Ga. 500

796 S.E.2d 708

ALLEN

v.The STATE.

S16A1528

Supreme Court of Georgia.

Decided: February 6, 2017

Darrell B. Reynolds, Sr., for Appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Kathryn L. Powers, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for Appellee.

NAHMIAS, Justice.

Appellant Superiore Allen was indicted and tried along with Brandon Norwood and Santonio Lucas, and was convicted of malice murder and other crimes arising from the shooting deaths of Vandit Patel and Jimmy Prak. Appellant contends that the evidence presented at trial was legally insufficient to support his convictions and that the trial court erred in failing to dismiss two counts of the indictment against him and in admitting evidence contrary to Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We affirm.¹

1. As summarized in this Court's opinion affirming Norwood's convictions, when viewed in the light most favorable to the verdicts, the evidence at trial showed the following:

[O]n January 18, 2009, Norwood, and his co-defendants [Appellant] and Santonio Demonta Lucas, planned to meet with Patel (a local marijuana dealer) and Prak at an apartment complex to conduct an arranged drug deal. However, the real plan was for [the defendants] to rob the drug dealers. Soon after Patel and Prak arrived to conduct the deal, Lucas, who was serving as the "lookout" for the planned robbery, followed them. Norwood and [Appellant] then started a physical fight with Patel and Prak. [Appellant] and Norwood chased the drug dealers as they tried to flee. [Appellant] went after Patel, and, when Patel fell over and rolled into the apartment complex parking lot, [Appellant] stood over him, shot him, and continued to punch and kick him. In the meantime, Norwood was beating up Prak in an outdoor area that was between two nearby apartments and across from the area where [Appellant] was beating Patel. [Appellant] then walked over to the area where Norwood was beating Prak and shot Prak in the head, killing him. [Appellant] then ran back over to Patel and shot him two more times. However, Patel was still alive. Norwood also stabbed Patel several times in an attempt to "finish[ ] [him] off" before he and his co-defendants ran away. However, Patel continued to live and was still gasping for air after the assailants left the scene. Patel did die soon thereafter, though, before police arrived. The State's medical examiner testified that Patel died, not from the stab wounds

inflicted by Norwood, but from a gunshot wound inflicted to his neck by [Appellant].

Norwood v. State , 297 Ga. 226, 226–227, 773 S.E.2d 225 (2015). See also Lucas v. State , 331 Ga.App. 455, 455–457, 771 S.E.2d 142 (2015) (affirming Lucas's non-murder convictions and discussing the evidence presented at trial in more detail).

Appellant contends that the evidence presented at trial was insufficient to support his convictions because the State failed to prove his role in the crimes and the testimony of the State's witnesses was speculative and unreliable. However, " ‘[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " Vega v. State , 285 Ga. 32, 33 (1), 673 S.E.2d 223 (2009) (citation omitted). When viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was legally sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319 (III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; OCGA § 16–2–20 (defining parties to a crime). See also Norwood , 297 Ga. at 227 (1), 773 S.E.2d 225 (affirming Norwood's convictions based on review of the same evidence).

2. Appellant asserts that the trial court erred in denying his motion to dismiss Counts 14 and 15 of the indictment due to the jury's inability to distinguish these two identical counts and the failure of each count to name a victim. Counts 14 and 15 each charged Appellant and his co-defendants with:

the offense of POSSESSION OF A WEAPON DURING THE COMMISSION OF A CERTAIN CRIMES [sic] for that the said accused in the County of Clayton and State of Georgia, on the 18th day of January, 2009, did have on accused's person a firearm, to wit: a certain handgun, during the commission of the crime of aggravated assault.

Appellant filed his motion to dismiss these counts on the first day of his trial in February 2012.

To the extent that Appellant was raising a general demurrer to Counts 14 and 15, his motion was not untimely, see State v. Eubanks , 239 Ga. 483, 485, 238 S.E.2d 38 (1977) (holding that "[a] general demurrer challenges the very validity of the indictment and may be raised anytime"), but it was meritless.

The true test of the sufficiency of an indictment that will withstand a general demurrer is ... as follows: If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.

Lowe v. State , 276 Ga. 538, 539, 579 S.E.2d 728 (2003) (citation and punctuation omitted). See also Dorsey v. State , 279 Ga. 534, 538 (2), 615 S.E.2d 512 (2005) ("When analyzing a general demurrer, the question is whether a defendant can admit to the conduct [alleged] and still be innocent of the crime."). As relevant here, OCGA § 16–11–106 (b) says:

Any person who shall have on or within arm's reach of his or her person a firearm ... during the commission of, or the attempt to commit: (1) Any crime against or involving the person of another ... and which crime is a felony, commits a felony....

Appellant would not be innocent of this crime if he admitted that, "on the 18th day of January, 2009, [he] did have on [his] person a firearm, to wit: a certain handgun, during the commission of the crime of aggravated assault," which is a felony against another person. Accordingly, neither Count 14 nor Count 15 of the indictment was subject to a general demurrer.

To the extent that Appellant was demanding to know to which of the two aggravated assault counts alleging use of a firearm Count 14 and Count 15 were referring, or the name of the victim of the predicate aggravated assault, then his motion was a special demurrer, and Appellant forfeited his claim by failing to file it within ten days after May 6, 2010, the date that he waived arraignment. See OCGA § 17–7–110 ("All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court."); Palmer v. State , 282 Ga. 466, 468, 651 S.E.2d 86 (2007) (holding that OCGA § 17–7–110's deadline applies to special demurrers); Bighams v. State , 296 Ga. 267, 270 (2) n.4, 765 S.E.2d 917 (2014) (holding that if a defendant waives arraignment, OCGA § 17–7–110's deadline runs from the date that the waiver of arraignment is filed). Appellant filed his motion to dismiss Counts 14 and 15 nearly 21 months after the statutory deadline, and there is no indication that the trial court granted him an extension. See Dasher v. State , 285 Ga. 308, 310 (2), 676 S.E.2d 181 (2009) ("The failure to file a timely special demurrer seeking additional information constitutes a waiver of the right to be tried on a perfect indictment.").

It should be noted, however, that although the jury found Appellant guilty of both Count 14 and Count 15, the trial court properly entered a judgment of conviction and sentence on only one of the two entirely duplicative counts (Count 14). See, e.g., Mitchell v. State , 337 Ga.App. 841, 847 (4)(b), 789 S.E.2d 797 (2016) ("[I]f ‘two charges are indistinguishable because all of the averments ... were identical, only one sentence may be imposed.’ " (citation omitted)), disapproved on other grounds by Quiller v. State , 338 Ga.App. 206, 209 n.3, 789 S.E.2d 391 (2016).

3. Finally, citing Bruton , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), Appellant contends that the admission of State's Exhibit 102 violated the Confrontation Clause of the Sixth Amendment. Bruton held that a defendant's right to be confronted with the witnesses against him is violated when he is tried jointly with a co-defendant who does not testify and the court admits an out-of-court statement by the co-defendant that directly inculpates the defendant. See id. at 135–137, 88 S.Ct. 1620 ; Sutton v. State , 295 Ga. 350, 353 (3), 759 S.E.2d 846 (2014). Exhibit 102 was a signed, handwritten statement that co-defendant Lucas's uncle, who testified at the trial, gave to the police before trial. In the written statement, the uncle repeated co-defendant Norwood's oral statement to him that "they would have nothing on them saying how Brandon [Norwood] set up the robbery" if Appellant "would have just kept his mouth close[d]." The exhibit thus includes two levels of out-of-court statements offered for the truth of the matter asserted: (1) the written statement that the uncle gave to the police; and (2) Norwood's oral statement to the uncle that was embedded in that writing. Appellant challenges only the second level—the statement that his co-defendant Norwood made to Lucas's uncle.²...