Fitts v. State

• Decision Date: 01 June 2021
• Docket Number: S21A0159, S21A0160
• Citation: 859 S.E.2d 79,312 Ga. 134
• Court: Georgia Supreme Court
• Parties: FITTS v. The STATE. Franklin v. The State.

312 Ga. 134

859 S.E.2d 79

FITTS

v.The STATE.

Franklin

v.The State.

S21A0159, S21A0160

Supreme Court of Georgia.

Decided: June 1, 2021

Robert James Beckwith, The Beckwith Law Firm, 363 Lawrence Street, Marietta, Georgia 30060, for Appellant in S21A0159.

Leslie Spornberger Jones, 230 College Avenue, Athens, Georgia 30601, for Appellant in S21A0160.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Alex Martin Bernick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, William Patrick Doupé, District Attorney, Toombs Judicial Circuit District Attorney's Office, P.O. Drawer 966, Thomson, Georgia 30824-0000, Steven Tyler Normandia, A.D.A., District Attorney's Office for the Western Judicial Circuit, 325 E. Washington Street, Rm 370, Athens, Georgia 30601, for Appellee.

Bethel, Justice.

In these related appeals, Donovan Raishad Fitts and Jermanique Vashon Franklin appeal their convictions for murder and other crimes in connection with the shooting deaths of Tenecia Posley and Barry Johnson.¹ In Case No. S21A0159, Fitts asserts that the trial court erred in admitting evidence of a subsequent shooting incident as intrinsic evidence and as other-acts evidence under OCGA § 24-4-404 (b) and that his trial counsel rendered ineffective assistance for failing to object to certain hearsay testimony and for not moving for a mistrial. In Case No. S21A0160, Franklin claims that the evidence was insufficient to convict her beyond a reasonable doubt as a party to the crimes, that the Court should reconsider the standard of review for sufficiency, and that she received ineffective assistance of counsel at trial.

As to Fitts, we discern no reversible error, so we affirm in Case No. S21A0159. As to Franklin, we reject each of her enumerations of error, but we have found a merger error with regard to her convictions for armed robbery and burglary. We therefore affirm her convictions for felony murder but vacate her convictions for armed robbery and burglary in Case No. S21A0160.

Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial shows that Fitts and Franklin started dating in late 2014 and began living together in early 2015.² The couple resided at the home of Fitts's godmother, Melba Ansley, who testified that Franklin, who was a nurse's assistant, moved in to care for her after her recent heart surgery. Ansley also testified that she considered Fitts to be her son, he had lived with her since he was 12 years old, and she allowed him to use her cell phone and her truck. Fitts's friend Deaundre Ross, who was dating Franklin's sister, often visited Fitts at Ansley's home.

During this time, Franklin was having an affair with Damian Calvin. Franklin had previously lived with Calvin at his house and was familiar with some drug activity occurring there. Calvin was a drug dealer, and he kept illegal drugs in his house. The two had plans to meet at a hotel about 45 minutes away on March 3, 2015, but Franklin rescheduled for the morning of March 4. Midmorning that day, right before she met Calvin at the hotel, phone records showed that Franklin called Fitts once on Fitts's own phone and several times on Ansley's phone, which was prepaid and therefore had no subscriber information.³ The cell-site location information for Fitts's phone placed him near Calvin's house during this time. Franklin testified that Fitts was using Ansley's phone because his own was broken. The two had no contact again until 11:22 a.m., when Fitts used Ansley's phone to call Franklin. Franklin testified that the phone calls were about repairs for Ansley's truck.

While at the hotel with Franklin, sometime between 11:00 a.m. and 11:20 a.m., Calvin received a call from Johnson, who said he was on Calvin's front porch. Johnson was a regular customer of Calvin. Calvin told Johnson that he was not there and to come back another time. Roughly ten minutes later, Calvin's cousin, Keith Robertson, called Calvin to tell him that, as he was driving past Calvin's house, he saw two men run from the house toward a truck parked across from Calvin's driveway in a sandpit. Robertson turned around so that he could go back to check on Calvin's house and then saw the truck leave the sandpit.⁴ On the phone, Calvin asked Robertson to check on both Calvin's son and Posley, who was Calvin's girlfriend at the time, inside the house. After driving up Calvin's driveway, Robertson saw Johnson dead on the front porch, still holding his cigarettes and keys. Robertson called for Posley, heard no reply, and told Calvin to hurry home. Robertson then called 911 at approximately 11:30 a.m. and waited at the end of Calvin's driveway for the police to arrive.

The police found the house thoroughly ransacked. The police also discovered shoeprints leading from an abandoned house next door through the woods to Calvin's backdoor, where someone had used a brick to break in. The police discovered Posley, who had been shot five times, on the floor in the corner of a bedroom, tightly bound with zip ties. Calvin's two-year-old son was found unharmed on the bed. Johnson had been shot eight times through the glass front door. Calvin testified that his drug merchandise and between $8,000 and $9,000 in cash were missing after the incident. A GBI firearms examiner testified that bullets and shell casings found at Calvin's house were all from the same gun; the police also later found shell casings from this gun both at Ansley's house⁵ and at the scene of a subsequent shooting incident where both Fitts and Ross were present.

After leaving the hotel, Franklin called Calvin a few times, starting at 11:27 a.m. In the afternoon, Fitts and Franklin met at the home they shared with Ansley and took Ansley's truck for repairs. Franklin testified that, on their way home, they picked up Ross and that Fitts and Ross spent the rest of the day at Ansley's house. That evening, GBI agents interviewed Franklin to corroborate Calvin's alibi. Franklin was not considered a suspect at that time. During that interview, she identified her boyfriend as "Donovan Ansley," but gave his correct address.

Franklin did not continue her physical relationship with Calvin after the shootings. However, she asked him as often as every other day about whether there were leads in the case.

In October 2015, the GBI executed a search warrant at Ansley's house. In November 2015, Franklin agreed to be interviewed by the GBI. Franklin claimed that on the day of the crimes, she and Fitts returned straight home after dropping off Ansley's truck for repairs, and that Fitts then stayed in his room. She made no mention of Ross at that time. The police later arrested Fitts and Franklin.

While Fitts was in jail in March 2017, his sister asked him in a recorded call, "So you did the shooting?" Fitts responded, "No, but I was there, and I had a big part in it. Not with that one anyway." Fitts's sister asked why Fitts would "do something like that," referring to the crimes. Fitts recounted how badly he needed money but that the crime "wasn't supposed to go like that." Fitts said that he knew what he did, that his situation pushed him to do certain things that he would not normally do, and that remembering the murders would eat him up when he was not busy or distracted.

At trial, following the close of the State's case-in-chief, Franklin moved for a directed verdict of acquittal under OCGA § 17-9-1 (b). The trial court denied the motion at that point. Fitts declined to testify, but Franklin testified in her defense and denied participating in planning the crimes.⁶ Franklin testified that, unknown to Fitts, she and Calvin had secretly planned to meet for sex, that she had no knowledge that the crimes were being committed during her tryst with Calvin, and that she could not account for why Fitts had decided to commit the crimes at Calvin's home during that same timeframe.

Case No. S21A0159

1. Fitts asserts that the trial court erred by admitting evidence of a March 31, 2015 shooting incident, which the court admitted as intrinsic evidence or, alternatively, as evidence of other acts under OCGA § 24-4-404 (b), and in charging the jury on the limited purpose of this evidence. We conclude that this claim does not require reversal because any error was harmless to Fitts.

A few weeks after the murders, Deaundre Ross, who was Fitts's and Franklin's co-defendant, was driving an SUV with his brother as a passenger, while Fitts was driving a separate vehicle behind them. Ross exchanged gunfire with a third party, leaving shell casings on the street and inside the SUV. After the shooting, Ross's SUV broke down due to a bullet hole in its gas tank, so Fitts gave Ross and Ross's brother a ride back to Ross's father's house. Law enforcement officers later determined that the shell casings from this shooting incident matched the casings found at the scene of the murders and at Ansley's home where Fitts lived and Ross often visited, meaning that the same gun had been used at all three locations.

Before trial, the State filed a notice of intent to present evidence of the shooting incident under OCGA § 24-4-404 (b) ("Rule 404 (b)"), and after a hearing, the trial court ruled that the evidence was admissible as intrinsic evidence or, alternatively, under Rule 404 (b). Assuming without deciding that the evidence of the shooting incident was admitted in error, this error was harmless to Fitts. "The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict." (Citation and punctuation omitted.) Taylor v. State , 306 Ga. 277, 283 (2), 830 S.E.2d 90 (2019). When applying a harmless-error analysis, we review the evidence de novo and weigh it as a reasonable juror would rather than in a light most favorable to upholding the jury's guilty verdict. See id.

Here, the State relied...