Ellis v. State, S12A1923.

• Decision Date: 07 January 2013
• Docket Number: No. S12A1923.,S12A1923.
• Citation: 292 Ga. 276,736 S.E.2d 412
• Parties: ELLIS v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 276

736 S.E.2d 412

ELLIS

v.The STATE.

No. S12A1923.

Supreme Court of Georgia.

Jan. 7, 2013.

William G. Cromwell, Atlanta, for appellant.

Katherine Lee Iannuzzi, Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, Paul L. Howard, Dist. Atty., Paige Reese Whitaker, Deputy Dist. Atty., Sheila Elizabeth Gallow, Sr. Asst. Dist. Atty., Office of the District Attorney, for appellee.

BLACKWELL, Justice.

Darius Ellis was tried by a Fulton County jury and convicted of the murder and attempted armed robbery of Marvel Stripling, as well as possession of a firearm during the commission of a felony. Ellis appeals, contending that the evidence is insufficient to sustain his convictions, that the trial court improperly limited his voir dire of prospective jurors, that the trial court improperly commented on the credibility of a witness, and that he was denied the effective assistanceof counsel. Having reviewed the briefs and record, we find no reversible error, and we affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that Stripling drove to Atlanta on July 21, 2008 to purchase marijuana, bringing with him a large amount of cash. After arriving in Atlanta, Stripling called on his friend, Shaya Muhammad, who had suggested to Stripling that Atlanta was a good market in which to buy marijuana. Muhammad enlisted Ellis, his neighbor, to assist Stripling, and Stripling, Muhammad, and Ellis set out in a car in search of marijuana. Their search eventually took them to a nearby residence, where Ellis entered the home, retrieved a marijuana sample, and eventually brought the sample outside for Stripling to inspect. While Ellis was inside the home, his identical twin brother, Demetrius, appeared at the residence and also entered the home. The sample that Ellis retrieved from the home apparently was acceptable to Stripling, and Stripling, Muhammad, and Ellis returned to the street on which Muhammad and Ellis lived, where the three men waited in their car for a marijuana dealer to arrive.

About 20 minutes later, a man arrived with a garbage bag and went into the home in which Ellis lived. Stripling wanted to remain outside, but Ellis insisted that Stripling complete the marijuana transaction inside his home. At first, Ellis went into his home alone, but he later returned outside and called for Stripling, and Stripling reluctantly agreed to accompany Ellis into the home. Muhammad followed. Inside, the man who had arrived earlier with a garbage bag pulled out a handgun, and another individual appeared with a bandana over his face, also carrying a gun. Stripling struggled with the gunmen, and in the course of that struggle, he was shot twice in the leg. The massive blood loss occasioned by these gunshot wounds eventually caused his death. Around the time he was shot, some of the money that Stripling had been carrying, as well as some of his jewelry, went missing.

While Stripling was struggling with the gunmen, Muhammad and Ellis fled from the residence. Later, Demetrius and another man were seen exiting and fleeing from the home, both carrying guns. When Ellis met with a detective to discuss the incident, he admitted that he had set up Stripling for an armed robbery. Ellis denied, however, that he knew that anyone would be shot in the course of the robbery, and he added that he was not willing to go to jail for Demetrius.

Ellis contends that the evidence merely shows his presence at the scene of the crimes, which would not be enough, of course, to warrant a conviction. See Brown v. State, 291 Ga. 887, 888(1), 734 S.E.2d 41 (2012). In support of this contention, Ellis notes that Muhammad testified at trial that Ellis appeared to be shocked by the events that unfolded inside his home and that Ellis fled before any shots were fired. And about his incriminating statements to the detective, Ellis claims that the testimony of the detective about these statements was weak and ambiguous. As we have explained before, however, it is for the jury, not appellate judges, to assess the credibility of witnesses, to weigh the evidence, and to resolve conflicts in the evidence. Williams v. State, 287 Ga. 199, 200, 695 S.E.2d 246 (2010). When we consider whether the evidence is sufficientto sustain a conviction, we must view the evidence in the light most favorable to the verdict, and we inquire only whether a jury reasonably could find beyond a reasonable doubt from that evidence that the defendant is guilty of the crimes of which he was convicted. Cutrer v. State, 287 Ga. 272, 274, 695 S.E.2d 597 (2010).

The evidence in this case was sufficient to authorize the jury to find that Ellis, Demetrius, and the other gunman were engaged in a common enterprise that involved Ellis luring Stripling into his home for the purpose of an armed robbery. “[W]hether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed.” Teasley v. State, 288 Ga. 468, 469, 704 S.E.2d 800 (2011) (citations omitted). See also Copeny v. State, 316 Ga.App. 347, 349(1)(a), 729 S.E.2d 487 (2012). Here, the evidence showed that Ellis undertook to guide Stripling in his search for marijuana, that Ellis took Stripling to a residence at which Demetrius appeared, that Ellis and Demetrius were inside the residence for a period of time, that Ellis exited the residence and directed Stripling to return to the street on which Ellis lived, that Ellis waited with Stripling until the gunman with a garbage bag arrived, that Ellis followed the gunman inside his home, that Ellis subsequently called Stripling into his home, and that Ellis insisted that the marijuana transaction be completed inside his home. Moreover, Ellis and Demetrius are brothers, and as we have said before, “where ... the crimes involve relatives, slight circumstances can support the inference that the parties colluded.” Teasley, 288 Ga. at 469, 704 S.E.2d 800 (citation and punctuation omitted).

From this evidence, as well as the incriminating statements that the detective attributed to Ellis, the jury properly might have found that Ellis was not merely present at the scene of the crimes, but was a party to them. See Parks v. State, 272 Ga. 353, 354, 529 S.E.2d 127 (2000). Cf. Moore v. State, 255 Ga. 519, 521(1), 340 S.E.2d 888 (1986) (evidence was insufficient where it was only circumstantial and showed merely that defendant had motive to kill victim, was present at scene of crime, and fled from scene). Even if Ellis “did not have the specific intent that [Stripling] be killed, the crimes which he did intend were dangerous ones; by their attendant circumstances, they created a foreseeable risk of death.” Parks, 272 Ga. at 354, 529 S.E.2d 127 (citation omitted). Accordingly, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Ellis was a party to the crimes of which he was convicted and for which he was sentenced, namely, felony murder in the commission of an aggravated assault, attempted armed robbery, and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Teasley, 288 Ga. at 470, 704 S.E.2d 800;Hill v. State, 281 Ga. 795, 797(1)(a), 642 S.E.2d 64 (2007); Parks, 272 Ga. at 354, 529 S.E.2d 127;Walsh v. State, 269 Ga. 427, 430(1), 499 S.E.2d 332 (1998).

2. We next consider the contention that the trial court improperly limited the voir dire of prospective jurors. Voir dire began with general questions put to the venire as a whole, and during this portion of the voir dire, Ellis asked whether any jurors had strong feelings about individuals involved in the sale of illegal drugs. Many jurors responded affirmatively to this question, and so, when Ellis was given the opportunity to question the prospective jurors individually, he asked a juror who had indicated that she had such strong feelings whether she could put those feelings aside if “mention of this is brought up in trial.” The prosecuting attorney objected that this question would require the juror to prejudge the case, and the trial court sustained the objection.² By doing so, Ellis contends, the trial court improperly limited his examination of the prospective jurors.

As we recently observed, “[a] fair trial before an impartial factfinder is a fundamental component of due process of law,” and “voir dire is the engine of selecting a jury that will be fair and impartial.” Ellington v. State, 292 Ga. 109 (7)(b), 735 S.E.2d 736 (2012) (citations omitted). Consequently, Georgia law provides for voir dire examination that may be relatively broad in scope:

In the examination, the counsel for either party shall have the right to inquire of the individual prospective jurors examined touching any matter or thing which would illustrate any interest of the prospective juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the prospective juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the prospective juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the prospective juror.

OCGA § 15–12–133. Nevertheless, the scope of voir dire is not unlimited, and generally speaking, prejudgment questions—questions that require a prospective juror to assume facts that are yet to be proved and to prejudge the case based on those assumed facts—are inappropriate. See Bryant v. State, 288 Ga. 876, 880(4)(a), 708 S.E.2d 362 (2011) (“Questions ... that call for prejudgment are improper in a voir dire examination.”) (citation omitted). We have acknowledged, however, that “there is often a fine line between asking potential...