Butts v. State

• Decision Date: 05 October 2015
• Docket Number: No. S15A1192.,S15A1192.
• Citation: 778 S.E.2d 205,297 Ga. 766
• Parties: BUTTS v. The STATE.
• Court: Georgia Supreme Court

297 Ga. 766

778 S.E.2d 205

BUTTS

v.The STATE.

No. S15A1192.

Supreme Court of Georgia.

Oct. 5, 2015.

Gary Wilson Jones, Marietta, for appellant.

Jason Ross Samuels, Asst. Dist. Atty., John Richard Edwards, Asst. Dist. Atty., D. Victor Reynolds, Dist. Atty., Cobb County District Attorney's Office, Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Department of Law, Ryan A. Kolb, Carlock, Copeland, and Stair, for appellee.

Opinion

NAHMIAS, Justice.

Appellant Jarvis Butts was found guilty of felony murder and other crimes in connection with the shooting deaths of two men, Mark Jones and Christopher Jackson, and the armed robbery of a third man, Joshua McCarter. Appellant contends that the evidence presented at his trial was legally insufficient to support his convictions and that the trial court applied the wrong standard in denying his motion for new trial on the general grounds. We affirm.¹

1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. Appellant, Darchelle Arnold, Desmond Post, Rolaunda Fripp, and Joseph Brown all lived at the Las Colinas apartment complex in Marietta. Appellant and Arnold, who have a child together, lived in an apartment with two roommates. Post lived alone in a studio apartment. And Fripp and Brown, who have a child together, lived in another apartment.

In the early morning hours of Tuesday, December 8, 2009, Arnold lent her car, which had a suspended tag because the insurance had lapsed, to Fripp and Brown. At 1:48 a.m., a Marietta Police officer pulled over Fripp and Brown near Las Colinas based on the suspended tag. Brown called Arnold, who walked to the scene with Appellant to retrieve her belongings from the car before it was towed away. The officer issued citations to Fripp and Arnold, seized the tag, and impounded the car. Fripp and Brown then went with Appellant and Arnold to their apartment, where the four of them devised a plan to obtain the money they needed to get Arnold's car back and to keep Fripp and Brown from being evicted for not paying their rent. Fripp and Arnold were going to the Sportsline Bar and Grille in Marietta that night for $2 Tuesdays, and it was decided that they would lure some men back to an abandoned apartment at Las Colinas, where Appellant and Brown would be waiting to rob the men.

That night at Sportsline, the victims, McCarter, Jones, and Jackson, were “flashing their money,” which drew Arnold and Fripp's attention. Arnold flirted with McCarter, who eventually came to her table and introduced himself and his friends. For the rest of the evening, McCarter bought drinks for Arnold and Fripp and danced with Arnold. When the bar was closing, Jones offered to give the two women a ride home. He drove an SUV with Fripp in the front passenger seat and Arnold and McCarter in the back seat, while Jackson followed them in another car. On the way to Las Colinas, the group stopped so McCarter could use an ATM. When they left the ATM, Jones neglected to turn on his headlights, and at 1:50 a.m. on December 9, 2009, a Cobb County Police officer initiated a traffic stop. Jones and Fripp switched places as the officer approached, because Jones's driver's license was suspended. Fripp told the officer that they were coming from Sportsline and headed to a nearby apartment complex. Fripp did not appear to be intoxicated, so the officer let them go with a warning.

As the group drove towards Las Colinas again, Arnold called Appellant and told him that she and Fripp were bringing three men. Fripp directed the group to the abandoned apartment, telling everyone to be quiet because her mother was inside with a baby. Jones, Jackson, and McCarter walked into the dark apartment followed by Arnold and then Fripp, who closed the door behind her and locked it. Appellant and Brown had enlisted Post to help with the robbery, and as soon as Fripp closed the door, they emerged from hiding in the kitchen wearing dark hooded sweatshirts and bandanas over their faces. Fripp pushed Arnold to the back of the apartment, where the two women climbed out an open window and ran to Appellant and Arnold's apartment to wait. Brown pulled out a handgun, and Appellant pretended to have a gun, holding his cellphone inside the pocket of his sweatshirt with his arm extended towards the victims. Brown yelled, “get your hands up!” Jones, Jackson, and McCarter, who were unarmed, complied, and Appellant and Post began rifling through the victims' pockets. There was a tussle, and Brown opened fire, hitting Jones once in the head and Jackson once in the back. Brown then put the gun to McCarter's head and demanded his property, and he handed over his wallet with his driver's license inside and other items. Appellant, Brown, and Post fled to Appellant and Arnold's apartment, where Arnold and Fripp were waiting. Brown told the women that “he had shot them” and started to panic, and Post took away Brown's gun.

Meanwhile, McCarter ran out of the abandoned apartment to a nearby convenience store, where he called 911. Based on his description of the apartment, the Marietta police were able to locate it. Jones was pronounced dead at the scene, and Jackson died shortly after arriving at the hospital. McCarter was interviewed, and Detective Jonnie Moeller was assigned to the case as the lead investigator. Based on McCarter's statements, information from the two traffic stops, Detective Moeller's previous interactions with Arnold and Post, and other evidence, the detective suspected that Appellant, Arnold, Post, Fripp, and Brown may have been involved in the robbery and shootings.

Detective Moeller went with other officers to Fripp and Brown's apartment, where she spoke with them for about ten minutes. She then went to Appellant and Arnold's apartment, but there was no answer, so she went to Post's apartment, where Appellant answered the door in boxer shorts and a tank top. Detective Moeller asked to speak with Post and then Arnold, and they came to the door wearing sleeping clothes as well. The detective then spoke privately with Arnold, who said she had gone to Sportsline that evening and left with some men and that they were stopped by a Cobb County police officer on the way home. Arnold was nervous and shaking and started to tear up when Detective Moeller asked her what happened after that. At that point, the detective had Appellant, Arnold, and Post taken into custody and secured Post's apartment while a search warrant was obtained. A few hours later, Brown and Fripp were also taken into custody.

Appellant, Post, and Brown all gave statements to the police admitting that they waited in the abandoned apartment for Fripp, Arnold, and the three victims, whom they then attacked and robbed as planned, splitting the cash and other items that they stole. During the search of Post's apartment, the police recovered three dark hooded sweatshirts, the dress that Arnold was wearing that night at Sportsline, and a pair of jeans with Appellant's Georgia identification card, McCarter's driver's license, and a $100 bill in the pockets. Under Post's bed, police found a safe containing $400 in cash and a wallet with Jackson's driver's license and Jones's identification card inside.

The next day, Bianca Townsend, who lived across the hallway from Appellant and Arnold and was good friends with Arnold, found a fabric lunch box in her apartment on the couch underneath a cover. The apartment had been unlocked, and Townsend recognized the lunch box from seeing it in Appellant and Arnold's apartment. When Townsend opened the lunch box and found a gun inside, she called the police. Ballistics testing showed that the bullet taken from Jones's skull and two shell casings recovered from the crime scene were fired from the gun found in the lunch box. Arnold later pled guilty and testified for the State at the trial of Appellant, Post, Fripp, and Brown.²

2. Appellant contends that the evidence presented at trial was legally insufficient to support his convictions for the armed robbery of McCarter and the two felony murder counts, which were predicated on the armed robbery of Jones and Jackson. Appellant asserts that the evidence showed that Brown was the only person who knew that a gun was going to be used in the robbery and there was no evidence that Appellant was a party to an armedrobbery of the victims; that there was no evidence that he personally took any property from the victims; and that there was no evidence that he proximately caused the death of Jones or Jackson.

“All participants in a plan to commit robbery are responsible for the criminal acts that are a probable consequence of the plan and are committed while executing it.” Smith v. State,268 Ga. 860, 861, 494 S.E.2d 322 (1998). See OCGA § 16–2–20(defining parties to a crime); Flournoy v. State,294 Ga. 741, 745, 755 S.E.2d 777 (2014)(“While [§ 16–2–20] ‘does not use the word “conspiracy” it is plain that it embodies the theory of conspiracy insofar as it renders one not directly involved in the commission of a crime responsible as a party thereto.’ ” (citation omitted)); Navarrete v. State,283 Ga. 156, 158, 656 S.E.2d 814 (2008)(explaining that under § 16–2–20, a jury may infer a common criminal intent from the defendant's presence, companionship, and conduct with other perpetrators before, during, and after the crimes). Consequently, a co-conspirator to a robbery may be convicted of armed robbery even if he did not have actual prior knowledge that his fellow conspirator intended to use a gun, where the use of an offensive weapon was naturally or necessarily done in furtherance of the robbery, see Hicks v. State,295 Ga. 268, 272–273, 759 S.E.2d 509 (2014); the State is not required to prove which conspirator actually took the victim's property, see Welch v. State,235 Ga. 243, 244–245, 219 S.E.2d 151 (1975); and proof that a victim was shot and killed during the robbery is...