Babbage v. State

• Decision Date: 20 January 2015
• Docket Number: Nos. S14A1286,S14A1287.,s. S14A1286
• Citation: 296 Ga. 364,768 S.E.2d 461
• Parties: BABBAGE v. The STATE, Hall v. The State.
• Court: Georgia Supreme Court

296 Ga. 364

768 S.E.2d 461

BABBAGE

v.The STATE

Hall

v.The State.

Nos. S14A1286

S14A1287.

Supreme Court of Georgia.

Jan. 20, 2015.

Ghanayem & Rayasham, Musa M. Ghanayem, Mark J. Issa, Jonathon J. Majeske, for appellant (case no. A14A1286).

Anthony S. Carter, for appellant (case no. A14A1287).

Robert D. James, Jr., District Attorney, Gary D. Bergman, Charles C. Olson, Charles A. Spahos, Joseph F. Burford, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K, Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.

Opinion

HUNSTEIN, Justice.

Appellants Mason Babbage and Samuel Hall were jointly tried and convicted of murder, armed robbery, and related crimes in connection with the October 2011 death of Breyon Alexander. Both men were sentenced to life in prison without the possibility of parole plus consecutive terms of years, and each now appeals his convictions and sentences. Finding no error in regard to either appellant, we affirm.¹

Viewed in the light most favorable to the jury's verdicts, the evidence adduced at trial established as follows. Around midday on October 18, 2011, Marvin Evans heard a loud noise from the back of his second floor DeKalb County apartment. From his balcony, Evans observed a white Chevrolet Malibu with its back side facing the apartment building. Evans saw two light-skinned black men, one beside the car and the other, whose hair was worn in dreadlocks, running toward the car. Proceeding downstairs to investigate, Evans passed a bald, light-skinned black man coming up the stairs. At trial, Evans identified Hall as the man he passed on the stairs.

In the downstairs apartment, Evans discovered the victim hogtied and bleeding, with several teeth knocked out of his mouth. The apartment had been ransacked. Evans called 911. Though conscious when Evans discovered him, the victim died from his injuries soon thereafter. His injuries included both blunt and sharp force injuries, consistent with having been stabbed and beaten with the butt of a gun. A knife was found in the apartment's patio area.

There were no signs of forced entry into the apartment, from which numerous items of electronic equipment, firearms, and a large sum of cash had been taken. Among the stolen items were a 50–inch flat screen television, a 42–inch television, a 12–gauge shotgun, two laptop computers, two Playstation gaming systems, an Xbox gaming system, a .40 caliber Smith and Wesson handgun, two .380 caliber handguns, and three other guns. The victim's roommate testified that the victim sold drugs from their apartment and for this reason was always careful about whom he allowed inside.

As of the time of the crimes, Babbage had known the victim for six to seven years. Babbage had stayed in the victim's apartment the week prior to the crimes, had been in the apartment many times, and knew that there were guns, money, and marijuana there. Babbage had sold a 50–inch TV to the victim a few weeks prior, and there was testimony that Babbage had recently demanded the victim sell it back, a demand the victim had refused. A search of Babbage's home uncovered a pair of black pants, identified as belonging to Babbage, bearing blood stains matched to the victim and DNA matched to Babbage. Babbage's wife owned a white Chevrolet Malibu, and there was evidence that Babbage had driven that vehicle on the morning of the crimes. A search of the Malibu uncovered fingerprints on the exterior of the front passenger side door belonging to Hall, a friend of Babbage.

Hall's girlfriend, Erin Tew, testified that, on the day before the crimes, she had overheard a telephone conversation on speaker phone between Hall and Babbage, in which they discussed “hitting a lick” on a man who had molested Babbage's niece and who had guns and drugs. The State established that, at the time of the murder, the victim was under indictment for child molestation.

A search of the home Hall shared with his girlfriend uncovered a 12–gauge shotgun, a .380 caliber handgun, 12–gauge shotgun shells, and .38 caliber live rounds. In the backyard of the home, investigators also discovered a makeshift barbeque grill containing ashes and charred clothing remnants. The son and daughter of Hall's girlfriend, who also lived in the home, testified that when they returned home from school on the day of the crimes, Hall, Babbage, and an unknown third man had “cool” electronic equipment at the house, which Babbage loaded into his car the following day. They also testified that on the same day Babbage and Hall had cut off their hair and all three men had used the backyard grill to burn clothing.

Tew testified that, on the day of the crimes, she received two text messages from Hall, the first stating, “I think we f* *ked up,” and the second stating, “I think we killed somebody.” Immediately thereafter, she received electronic photographs showing a sink full of dreadlocks and Hall, who, though previously having worn dreadlocks and full facial hair, was now bald and clean-shaven. On the evening of the crimes, Tew testified, Hall told her that “it wasn't even worth it” and that “he didn't even get anything.”

A cigarette butt recovered from the victim's apartment was determined to bear the DNA of co-defendant Phillip Kennebrew. Kennebrew's girlfriend testified that, on the morning of the crimes, she had driven Kennebrew to meet Babbage, who was driving a white Chevrolet. Kennebrew's girlfriend also testified that when she saw him later that day he was wearing different clothes than he had been wearing in the morning. During the investigation, a search uncovered live .40 caliber Smith and Wesson rounds and 12–gauge shotgun rounds, as well as a knife, in backpacks belonging to Kennebrew.

Cell phone records revealed that, on the day of the crimes, 15 separate text or voice communications took place between Babbage's cell phone and Hall's cell phone. Six of these communications, which occurred during a 36–minute period around the time of the crimes, were transmitted via the cell tower servicing the area of the victim's apartment. The phone records also showed seven communications between Babbage's cell phone and Kennebrew's cell phone from that morning.

Case No. S14A1286

1. Though Babbage has not enumerated the general grounds, we nonetheless find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Babbage was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The victim's blood was found on Babbage's pants, and Babbage's car was seen at the crime scene at the time of the crimes. Babbage had established motives for the crimes, was familiar with the victim's apartment and the valuables kept there, and was likely to have been able to enter the apartment with the victim's consent. On the afternoon of the crimes, Babbage was seen in possession of items identical to those stolen from the victim's apartment. He was also observed on that same day cutting his hair and burning clothing, strongly indicative of an attempt to elude recognition. There was evidence that Babbage was in the company of, and in frequent cell phone contact with, both Hall and Kennebrew on the day of the crimes, both of whom were linked to the crimes independent of the evidence of their association with Babbage. While there is little evidence regarding precisely “who did what” in the victim's apartment, there is ample evidence to implicate Babbage either as a principal or as a party to the crimes. See OCGA § 16–2–20 (persons “concerned in the commission of a crime,” by way of intentionally aiding and abetting or intentionally advising, encouraging, or counseling another to commit such crime, may be charged with and convicted of commission of the crime); see also Hassel v. State, 294 Ga. 834(1), 755 S.E.2d 134 (2014) (evidence regarding defendant's presence at crime scene, motive, and conduct before and after crime was sufficient to establish guilt as an accomplice); Rush v. State, 294 Ga. 388, 389(1), 754 S.E.2d 63 (2014) (“ ‘[p]resence, companionship, and conduct before and after an offense is committed are circumstances from which participation in the criminal act may be inferred’ ”).

2. Babbage contends that his trial counsel rendered ineffective assistance in two respects. To establish ineffective assistance of counsel, a defendant must show that his trial counsel's performance was professionally deficient and that but for such deficient performance there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Wesley v. State, 286 Ga. 355(3), 689 S.E.2d 280 (2010). To prove deficient performance, one must show that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344(3), 745 S.E.2d 637 (2013). Courts reviewing ineffectiveness claims must apply a strong presumption that counsel's conduct fell within the wide range of reasonable professional performance. Id. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. Id. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other. See Green v. State, 291 Ga. 579(2), 731 S.E.2d 359 (2012).

(a) Babbage first claims his counsel was ineffective for failing to object to the trial court's jury instruction on parties to a crime, insofar as the indictment did not specifically charge Babbage as a party. However, it is well-settled that the indictment need not specifically...