Brooks v. State, No. S06A0787.
| Decision Date | 02 October 2006 |
| Docket Number | No. S06A0854.,No. S06A0787.,No. S06A0789. |
| Citation | 281 Ga. 14,635 S.E.2d 723 |
| Parties | BROOKS v. The STATE; Ball v. The State; Clark v. The State. |
| Court | Georgia Supreme Court |
Lloyd Johnson Matthews, Jonesboro, for appellant.
Joseph Scott Key, Sexton, Key & Hendrix, P.C., Stockbridge, for appellant.
Christopher E. Chapman, McDonough, for appellant.
Tommy Kenneth Floyd, Dist. Atty., Thomas R. McBerry, Chief Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Laura D'Ann Dyes, Asst. Atty. Gen., Blair Douglas Mahaffey, Asst. Dist. Atty., for appellee.
Joseph Scott Key, Sexton, Key & Hendrix, P.C., Stockbridge, for Ball.
Christopher E. Chapman, McDonough, for Clark.
Seboris Brooks, Antwann Ball, and Komeika Clark were convicted in 2004 of the malice murder and armed robbery of Luis Sutton.1 Each defendant appeals, arguing that the evidence was insufficient to sustain their convictions and that the trials should have been conducted separately. Finding no error, we affirm the convictions.
1. The evidence presented at trial showed that on the day of the murder, Henry County narcotics officers were monitoring drug activity at the residence where the victim lived. Early in the evening, the police drove by the residence and observed a black Ford Taurus matching the description of Ball's car in the driveway. Later, the police returned and attempted to conduct a controlled purchase, but the police informant received no answer at the door when he attempted to enter. The undercover police then observed the owners of the residence return home. After finding Sutton, a regular house guest, dead in their home, the homeowners called the police and the undercover police left the area. Sutton had been killed by a single gunshot wound.
Two witnesses, Terrence Tyler and Robin Nelson, testified that Clark told them on separate occasions that she, Brooks, and Ball had attempted to rob Sutton, and that Sutton was killed during the struggle. Clark had stated that she gained entry into the house first and then let Brooks and Ball in. Another witness, Byron Ferguson, testified that while he was with Brooks in jail, Brooks told him that he, Ball, and Clark had killed a man during a robbery in which they stole $20,000. Terry Jester testified that he overheard Ball admit to killing Sutton and state that his cousin Brooks was going to take the rap for it. Thus, the evidence showed that each defendant made statements implicating themselves in the crimes.
In addition to the money that was stolen from the home, one of the homeowners also testified that certain electronic equipment had also been taken during the robbery.
After reviewing the evidence in the light most favorable to the jury's verdict, we conclude that there was sufficient evidence for a rational trier of fact to find each defendant guilty of the crimes for which they were convicted.2
2. Brooks and Ball both argue that the trial court erred in the admission of certain hearsay statements made by their co-defendants. Ball argues that the trial court erred by admitting the hearsay statements made by Brooks to Ferguson. Similarly, Brooks argues that the trial court erred by not giving a limiting instruction informing the jury that the testimony of Nelson, regarding statements Clark made to Nelson, could only be considered against Clark, and not against Brooks. Because the statements were all properly admitted against all defendants as co-conspirator's statements under OCGA § 24-3-5, the trial court did not err in admitting the statements or refusing to provide limiting instructions therewith.
Under OCGA § 24-3-5, "[a]fter the fact of the conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all." A conspiracy may be shown by proof of "an agreement by two or more persons to commit a crime."3 The existence of the conspiracy agreement "`may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose.'"4 "The existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence."5
During a pre-trial hearing, the State established prima facie evidence of the existence of an agreement between the defendants to rob Louis Sutton.6 The physical evidence at the scene of the crime, as well as statements from other witnesses, corroborated the defendants' descriptions of the house as a drug house. A narcotics agent witnessed a car in the driveway on the night of the crime that matched the description of Ball's car. Ball's statement that he had shot the victim in the side matched the actual wound on the victim. A witness testified that Brooks possessed drugs and money in a hotel room shortly after the crime. One of Clark's friends testified that she knew the details of the robbery that had occurred. Also, each of the defendants' statements corroborated the other defendants' statements, including the specific participants in the crime, even though none of the statements were made in the presence of another defendant.
The defendants claim that the statements at issue do not fit within the co-conspirator exception to the hearsay rule because any conspiracy had ended by the time the statements were made. Specifically, the defendants complain about Clark's statements to Nelson, which she made while in jail, and Brooks' statements to Ferguson, which were also made in jail. Other statements were also admitted as co-conspirator's statements, including Clark's statement to Tyler, which occurred before the defendants were considered suspects in this case, and a statement Ball made in jail that was overheard by Jester. None of the defendants gave incriminating statements to police before making the statements at issue.
"`Hearsay statements made by a conspirator during the course of a conspiracy, including the concealment phase, are admissible against all conspirators.'"7 The defendants claim, however, that the statements occurred after any conspiracy had effectively ended, because the fact that defendants were talking about the crime meant that they were making no effort to conceal the existence of the conspiracy. We find that the statements in this case were made during the concealment phase, even though the defendants were talking about their involvement and some of the statements were made after the defendants had been arrested.
"The rule is that so long as the conspiracy to conceal the fact that a crime has been committed or the identity of the perpetrators of the offense continues the parties to such conspiracy are to be considered so much a unit that the declarations of either are admissible against the other."8 Merely because the defendants were talking about the crimes to third parties does not evidence the end of the concealment of the conspiracy.9 Moreover, "a conspiracy or the concealment phase of it does not end just because one or more participants have been arrested and jailed."10 Had the incriminating statements been made to the police, it is likely that the conspiracy would have ended.11 But the statements at issue in this case were made while participants were still hiding their identities from the police, and were thus made during the concealment phase of the conspiracy, and were admissible against all defendants.
Moreover, the admission of the statements did not violate the defendants' rights under the Confrontation Clause.
The admission of a co-conspirator's statement does not violate the Confrontation Clause as long as there are "sufficient indicia of reliability." Factors indicating reliability include (1) the absence of express assertion of past facts, (2) the co-conspirator had personal knowledge of the facts he was stating, (3) the possibility that the co-conspirator's recollection was faulty or remote, and (4) the co-conspirator had no reason to lie about the defendant's involvement in the crime.12
In this case, only the first factor, that the statements contain assertions of past facts, weighs against the admission of the statements. However, where only the first factor weighs against admission, and the other factors illustrate the reliability of the statement, it does not violate the Confrontation Clause to admit the statements against all co-conspirators.13
The statements at issue in this case were made by all three defendants, within a few months of the crimes, at different times both before and after they were incarcerated. The defendants were speaking of matters within their personal knowledge, and although each of the defendants made his or her statement outside the presence of the other defendants, all the statements corroborated the other statements and the physical evidence at the crime scene. Most importantly, each defendant implicated himself or herself in their statement, a factor that weighs heavily in favor of reliability. 14
Ball also argues that the admission of the statements violated the Confrontation Clause under Crawford v. Washington.15 Because the statements were not testimonial in nature, however, the statements were properly admitted under the co-conspirator hearsay exception.16
The trial court did not err in admitting the hearsay statements as statements of a co-conspirator admissible against each defendant.
3. Brooks and Ball argue that their attorneys were ineffective on several grounds. In order to prevail on a claim of ineffective assistance of counsel, the defendants have the burden to show that their trial counsel's performance was deficient and that but for that deficient performance, there is a reasonable probability that the result of the trial would have been different.17 Brooks and Ball have failed to meet this burden.
First, Brooks and Ball argue...
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