Bailey v. State

• Decision Date: 29 May 2012
• Docket Number: No. S12A0671.,S12A0671.
• Citation: 291 Ga. 144,12 FCDR 1777,728 S.E.2d 214
• Parties: BAILEY v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 144
728 S.E.2d 214
12 FCDR 1777

BAILEY
v.
The STATE.

No. S12A0671.

Supreme Court of Georgia.

May 29, 2012.

[728 S.E.2d 215]

Frederick M. Scherma, Atlanta, for appellant.

Patrick H. Head, Dist. Atty., Office of The District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Ruth Thrower, Asst. Dist. Atty., Department of Law, Amelia Greeson Pray, Asst. Dist. Atty., District Attorney's Office, Jesse David Evans, Deputy Chief Asst. Dist. Atty., for appellee.

HINES, Justice.

[291 Ga. 144]Deigo Bailey appeals his convictions for malice murder, conspiracy to commit armed robbery, and possession of a firearm during the commission of a crime in connection with the fatal shootings of Jerry Bell and Wilbert Deroulot. He challenges the sufficiency of the evidence and the admission into evidence of certain testimony. Finding the challenges to be without merit, we affirm.¹

[291 Ga. 145]The evidence at trial, construed in favor of the verdicts, showed the following. Bell and Deroulot sold drugs and held “strip parties” at a rented house in Cobb County. Bailey and his co-indictees Ford, Stokes, and Moore

[728 S.E.2d 216]

conspired to rob them. Bailey's brother, who was dating Stokes at the time, was in prison for murder, and Bailey and Stokes wanted to raise money to hire a lawyer for him. Over the course of a month, the two developed a plan in which Stokes and another woman would distract Bell and Deroulot inside the house and text Bailey when the moment was right for the robbery.

On the night of April 4, 2009, the four co-indictees met at Stokes's home. Ford brought a handgun and an assault rifle to the house. Bailey picked up the rifle as they left to go to the victims' house. The four took two vehicles, with Stokes taking Moore in her car and Bailey driving his girlfriend's black Honda with Ford as a passenger. The black Honda had a distinctively loud muffler. Upon arrival, Bailey and Ford waited outside while Moore and Stokes entered the house. Stokes texted Bailey, updating him on the situation inside. Sometime after 3:00 a.m., Bailey and Ford walked up to the house and hid behind a green vehicle parked in the backyard. Not long after, Bell and Deroulot walked out onto their back deck. Bailey and Ford opened fire, with Ford wielding the rifle and Bailey using the handgun. Deroulot was shot nine times and Bell was shot six times, and [291 Ga. 146]both died from their wounds. Spent bullet casings matching the two guns were found in the backyard.

Neighbors heard the gunfire and called the police. Bailey and Ford fled the scene in the Honda. Neighbors saw a dark-colored vehicle leave the scene and noted its distinct muffler sound. A responding officer passed a vehicle meeting the neighbors' descriptions, but lost the car before it could be stopped. Ford tossed the rifle out of the car's window. Stokes and Moore also fled the scene, driving to the home of Bailey's cousin, Tameka Cook where Stokes told Cook that Bailey and Ford had killed the two victims. Stokes and Moore then met with Bailey and Ford, and Ford complained that the entire operation had been a waste of time inasmuch as they had come away without drugs or money. Stokes asked Bailey why they had opened fire and he told her it was because the victims came outside. Bailey later told a friend that he had fired the handgun, but did not know if he hit anyone.

All three co-indictees testified for the State at Bailey's trial.

1. Bailey contends that the evidence was insufficient to support his convictions because it showed that he renounced and abandoned the conspiracy to commit armed robbery and that Ford fatally shot both of the victims.

Certainly, an initial coconspirator can avoid the effects of the crime of conspiracy to commit a crime ² if that person withdraws from the agreement to commit a crime prior to an overt act in furtherance of the crime.³ Furthermore, it is an affirmative defense to a charge of criminal attempt to commit a crime ⁴ when the individual abandons [291 Ga. 147]his “effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal

[728 S.E.2d 217]

purpose.”⁵ But, the evidence, as outlined above, shows that this was far from Bailey's situation. Bailey is relying upon his version of events, which is contradicted by, inter alia, the physical evidence at trial, which included but was not limited to, the facts that shell casings from two guns were found at the murder scene and in positions indicating that...