Hawkins v. State

• Decision Date: 20 August 2018
• Docket Number: S18A0886
• Citation: 304 Ga. 299,818 S.E.2d 513
• Parties: HAWKINS v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 299

818 S.E.2d 513

HAWKINS

v.The STATE.

S18A0886

Supreme Court of Georgia.

Decided: August 20, 2018

Wiley Devin Franklin, FULTON COUNTY PUBLIC DEFENDER'S OFFICE, 100 Peachtree Street, Suite 1600, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Scott Orion Teague, Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Cheveda McCamy, OFFICE OF THE DISTRICT ATTORNEY, 136 Pryor Street, S.W., Third Floor, Atlanta, Georgia 30303-1515, Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Senior A.D.A., Lyndsey Hurst Rudder, Deputy D.A., Aslean Beth Zachary, A.D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, for Appellee.

MELTON, Presiding Justice.

Following a jury trial, Orlando Lamar Hawkins was found guilty of malice murder and other offenses in connection with the shooting death of Morie Jermichael Brooks.¹ On appeal, Hawkins contends that the trial court erred in its charge to the jury, and that the trial court erred in denying his motion in limine to exclude from trial evidence of various Facebook messages. For the reasons that follow, we affirm.

1. Viewed in the light most favorable to the jury’s verdict, the evidence presented at trial revealed that, in the early morning hours of October 6, 2012, Brooks, the victim, was leaving an Atlanta nightclub with his friends, including Julian Holland, Rayshawn Boone, and Nicholas Caldwell, among others. Hawkins, who was a convicted felon, and his two associates, James Rogers, Jr., and a man named Hanad, who was also known as "T-Mac," approached Boone and asked him if he had any "molly," an illegal drug, to sell to them. Brooks asked what Hawkins and his group wanted with Boone, and he accused the men of attempting to rob Boone. Brooks and Boone then exchanged heated words with Hawkins’ group, and Hawkins and his friends agreed to fight Brooks and Boone outside of the club. Brooks and Boone recruited their other friends to participate in the upcoming fight as they were exiting the club.

Hawkins and his associates then began walking away toward their car,² which was parked nearby. Some of this incident was captured on security cameras at the club, and the security camera footage revealed that Hawkins was running to the car faster than the rest of his group.³ When the rest of Hawkins’ group got near the car, one of the people in the group called over to Brooks’ group and told them to "come up here to the car." Fearing that Hawkins’ crew might have retrieved a gun, Brooks and his friends did not walk towards Hawkins’ group but instead began walking away in the opposite direction and going to their own cars. Some of this movement was caught on security cameras as well.

Hawkins’ group got into their car, with Rogers, Jr., in the driver’s seat, Hanad in the front passenger seat, and Hawkins, who was the only one wearing a sleeveless shirt, in the back seat on the driver’s side. Before Brooks’ group could reach their cars, Hawkins and his crew drove up to Brooks’ group with the back window of their car rolled down and the headlights turned off, and Hawkins stuck his sleeveless arm out of the back driver’s side window of the car while brandishing a revolver. Brooks’ group turned to run away, and then someone from the Hawkins group in the car yelled, "Yeah, talk that sh** now," just before a single shot was fired, which fatally struck Brooks from behind as he was running away.

Hawkins bragged to Rogers, Jr.’s, sister, Terri, that he was the shooter. Hawkins told Terri that she would hear about the shooting on the news, and Terri later saw such news reports, where she recognized Hawkins and her brother from the video footage shown and recognized her father’s car as being the one used in the shooting. Terri told her father, Rogers, Sr., about his car being on the news in connection with a shooting, and Rogers, Sr., convinced Rogers, Jr., to go to the police. Hawkins later sent threatening Facebook messages to Rogers, Jr., accusing him of being a snitch for agreeing to cooperate with police.

The evidence was sufficient to enable a rational trier of fact to find Hawkins guilty of all of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see also OCGA § 16-2-20 (parties to a crime).

2. Hawkins contends that the trial court erred by charging the jury on parties to a crime. However, "[t]o authorize a jury instruction ... there need only be produced at trial slight evidence supporting the theory of the charge." (Citation omitted.) Davis v. State, 269 Ga. 276, 279 (3), 496 S.E.2d 699 (1998). Here, substantial evidence supported the theory that Hawkins and his compatriots worked together to commit the drive-by shooting that resulted in Brooks’ death. The evidence revealed that Hawkins was an active participant in the heated altercation with Brooks’ group before the shooting; that Hawkins, along with his friends, rapidly returned to the car that was used during the shooting; that someone in Hawkins’ group continued to escalate the situation with Brooks’ group by inviting them to come to the car; that Hawkins got into the car with his friends and that they used the car to approach Brooks’ group with the headlights off and the windows down; that someone in the car threatened Brooks’ group just before the shooting; and that Hawkins himself may have been the actual shooter after one of his friends drove him directly to a place where he could confront Brooks’ group. We find no error from the trial court giving a charge on parties to a crime. See, e.g., Bragg v. State, 295 Ga. 676 (3), 763 S.E.2d 476 (2014). See also OCGA § 16-2-20.

3. Hawkins argues that the trial court committed plain error by failing, sua sponte, to give a jury charge on accomplice corroboration.

See OCGA § 24-14-8 ("The testimony of a single witness is generally sufficient to establish a fact. However, in ... felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness."). See also OCGA § 17-8-58 (b) ("Failure to object [to a portion of a jury charge] shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention [through a specific objection] as provided in ... this Code section"); State v. Kelly, 290 Ga. 29 (1), 718 S.E.2d 232 (2011). There is no plain error here.

In order to show plain error:

First, there must be an error or defect—some sort of "deviation from a legal rule"—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it "affected the outcome of the trial court proceedings." Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error " ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ "

(Citation, punctuation, and emphasis omitted.) Kelly, supra, 290 Ga. at 33 (2) (a), 718 S.E.2d 232.

Relying on Stanbury v. State, 299 Ga. 125, 786 S.E.2d 672 (2016), Hawkins contends that, because Rogers., Jr., was his alleged accomplice and was the only witness to directly connect Hawkins to the actual shooting,⁴ and because the trial court gave jury charges on parties to a crime and the fact that the testimony of a single witness is generally sufficient to establish a fact, the failure to give a charge on accomplice corroboration constituted plain error. In Stanbury, this Court found that the trial court committed plain error by failing to give a charge on accomplice corroboration where the court had charged the jury on a single witness’ testimony being sufficient to establish a fact, and where the "accomplice[’s] testimony served as the bedrock of the conviction[,] because [the accomplice] was the only witness who affirmatively identified [the defendant] as [a participant in the crimes]." Id. at 131 (2), 786 S.E.2d 672. Although there was slight evidence of corroboration to support a finding of guilt in Stanbury, the evidence "was in no way overwhelming, and, in some instances, it was conflicting." Id. Accordingly, "[u]nder the specific facts of [that] case," we concluded that "the outcome of the trial court proceedings was ‘likely affected’ by the trial court’s failure to provide an accomplice corroboration charge to the jury." (Citation omitted) Id. at 129-131 (2), 786 S.E.2d 672.

Here, although the failure to give a jury charge on accomplice corroboration constituted a clear or obvious error, the record reveals that the error did not likely affect the outcome of Hawkins’ trial. Unlike the situation in Stanbury, in the instant case there was significant and consistent evidence outside of the testimony provided by the accomplice to specifically connect Hawkins to Brooks’ murder both at the scene of the crime and after the crime had been committed, including Hawkins’ own admission to Terri Rogers that he had shot someone at the club that he went to with Rogers, Jr.; eyewitness accounts from Brooks’ friends who recognized Hawkins from their altercation at the club and who recognized him as the one who had a sleeveless shirt before seeing a sleeveless arm emerge from a car window while brandishing a revolver;...