Heard v. State
| Decision Date | 16 June 2020 |
| Docket Number | S20A0064 |
| Citation | 309 Ga. 76,844 S.E.2d 791 |
| Parties | HEARD v. The STATE. |
| Court | Georgia Supreme Court |
Randall Paul Sharp, Sharp Georgia Law Firm, 4480 South Cobb Drive, Suite H, #164, Smyrna, Georgia 30080, Attorneys for the Appellant.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew Min-soo Youn, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Elizabeth A. Baker, A.D.A., Fayette County District Attorney's Office, Griffin Judicial Circuit, One Center Drive, Fayetteville, Georgia 30214, Tracy Graham Lawson, District Attorney, Clayton County District Attorney's Office, 9151 Tara Boulevard, Fourth Floor, Jonesboro, Georgia 30236, Attorneys for the Appellee.
Appellant Damien Heard was convicted as a party to malice murder and other crimes in connection with the fatal shooting of James Daniel Evers ("Daniel"), the armed robbery of Donald Evers ("Donald"), and the aggravated assaults of Charles Emmons and John Elledge, Jr. In this appeal, Appellant argues, among other things, that the trial court erred by admitting under OCGA § 24-4-404 (b) evidence of subsequent crimes committed by Appellant. As explained below, because the trial court abused its discretion by admitting the evidence of Appellant's later crimes and the error was not harmless, we reverse Appellant's convictions.1
1. The evidence presented at Appellant's trial showed the following.2 On the morning of April 4, 2013, Donald was in a trailer in the back yard of the house on Rock Cut Road in the Conley area of Clayton County where he lived with his son, Daniel. Some time after 9:30 a.m., a young man walked into the trailer behind Donald and put a gun to the back of his head, telling him to get on his knees and look down. Donald did not know the gunman, but described him as young and having his hair in twists in a "checkerboard" pattern. Another young man, whom Donald never saw clearly, walked beside Donald and began rummaging through drawers in the trailer. The man also took Donald's cell phone and wallet from his pockets. The man with the gun asked Donald how many people were in the house, which doors were unlocked, and where the money and marijuana were. Donald said that he did not know anything.
The gunman then ordered Donald to walk outside and get on the ground. The other man used clear packing tape to bind Donald's hands and cover his eyes. The men then knocked Donald down and put the hood of a pickup truck over him. Through a sliver between the hood and ground, Donald saw the gunman walk away, speaking on a cell phone, and heard him say, "we got one of them behind the building duct taped." The gunman told the other man to watch the "side and front." Both men then walked out of Donald's sight. About 25 minutes later, Donald heard four or five gunshots that sounded close to him. He then heard two people run toward him and jump over a nearby fence. When he thought it was safe, Donald came out from under the hood.
Meanwhile, Daniel, who had returned with his girlfriend Ashley Baxley from a trip to Florida the night before, was working near the house on the long driveway that led to the house with Baxley and his friend Charles Emmons. They had detached Daniel's motorcycle trailer from his Yukon SUV and were driving from the house toward the street when Daniel noticed an unfamiliar green Mountaineer SUV parked nearby and asked Emmons who drove it; Emmons said that he did not know. Daniel also saw tracks in his yard from a four-wheeler and was upset about them. He stopped the Yukon so he could find and say something to the person who caused the tracks. He walked along the driveway back toward the house, with Emmons following some distance behind him. He got to a point in the driveway where Baxley and Emmons could not see him. When they heard a gunshot, Emmons ran toward where Daniel had been; when Emmons got near the house, a dark-skinned man with hair twists fired three shots at him. Emmons ran back to the Yukon, and he and Baxley drove away. The green Mountaineer followed them.
Around this time, Baxley's friend Christy Oliver and Oliver's friend John Elledge, Jr., arrived at the store across the road from the Everses’ house. Oliver noticed a green SUV parked near the house in a place where no one usually parked. She also saw Appellant, whom she knew, "walking along the grassline" on the side of the store, talking on a cell phone.3 Then Elledge and Oliver heard three or four gunshots and saw three men, one with hair twists, jump over a fence and head toward the green SUV. The three men looked "very young" to Oliver; they did not include Appellant. Elledge got into his truck and followed the men, trying to see the license plate number on the green SUV.
Emmons and Baxley had driven in the Yukon to the house of Daniel's grandmother, which was less than a mile away, near the corner of Slate Road and Falcon Court. As Emmons pulled up to the house, he saw the green Mountaineer pass with a young man – not the one who had shot at him – hanging out of the window with a pistol in his hand. Emmons jumped out of the Yukon and started running. Baxley got on the floor of the Yukon. Meanwhile, in his truck, Elledge continued to follow the Mountaineer as it turned from Slate Road onto Falcon Court, which was a dead-end. The Mountaineer turned around and drove back toward Elledge's truck, and one of the passengers shot at Elledge as the Mountaineer drove away.
Baxley heard several gunshots and heard the Mountaineer drive off. She then got in the driver's seat and drove the Yukon back to the Everses’ house. She saw Oliver running up and down the driveway and drove to the part of the driveway near the house, where she found Daniel, who had died from a gunshot wound to the head. Elledge also returned to the Everses’ house, where he saw Donald and helped him remove the tape from his wrists.
The police received 911 calls reporting shots fired at 2:54 and 2:58 p.m. and arrived at the Everses’ house about 15 minutes later. Four .380 shell casings were in the driveway, with one about six inches from Daniel's body. The bullet later removed from his skull was also a .380. All four shell casings and the bullet were fired from the same gun, which was matched to an incident on April 2, two days before the murder. In that incident, Jamari Worthy shot himself in the foot while playing with the gun, which Jamarcus Woodall had brought to the Four Seasons Apartments in Atlanta.4 Woodall came with Lajuante Stephens, who lived in the apartments, and Alfred Smith. After Worthy shot himself, Woodall, Stephens, and Smith fled; Stephens took the gun. Worthy was arrested for a probation violation and was in jail at the time of the murder. He testified that he did not personally know Appellant, but "a lot of people say in the streets" that Appellant is called "Mastermind."
The green Mountaineer, which had been stolen from the Four Seasons Apartments on the day before the murder, was found burned on the day after the murder less than a mile from the apartments. At the time of the shooting, Stephens, Smith, and Woodall were 17 or 18 years old. Detective Gosart, the lead investigator, testified that he identified Stephens as a suspect based in part on his age and on the description he got "[p]er [his] investigation" of Stephens's hair, which was short dreads pulled out in a "baseball diamond" pattern.5 No evidence was presented that any victim or other eyewitness to the crimes identified Stephens, Smith, or Woodall as perpetrators, before or during Appellant's trial.
According to cell phone records, on the day of the crimes, Appellant's and Stephens's phones exchanged 28 calls between 12:02 p.m. and 11:34 p.m. In the period shortly before the murder, between 1:57 p.m. and 2:32 p.m., Stephens's phone called Appellant's phone eight times, and Appellant's phone called Stephens's phone twice. During these calls, Stephens's phone was pinging on a tower seven-tenths of a mile from the Everses’ house. At 2:41 p.m., Appellant's phone began pinging on a tower south of the house and ended pinging on a tower closer to the house. An expert in interpreting cell phone records testified that a call may move between towers because the phone is moving or because the tower becomes too busy. Appellant's phone then pinged on towers near the Everses’ house for several calls. At 3:00 p.m., Stephens's phone called Appellant's phone and began moving toward the Four Seasons Apartments. Appellant's phone called Stephens's phone at 3:01 and at 3:38 p.m. At 3:38 and for several calls until 3:53 p.m., Appellant's phone pinged on a tower near the Four Seasons Apartments. The State did not elicit any evidence that Appellant called Stephens before or after the day of the crimes or that he ever called Smith or Woodall. While Appellant was in jail awaiting trial, he made a call using Smith's phone card, in which he said, "everybody staying solid and s**t" or "everybody staying silent and s**t."6
About a year after the murder, Appellant's former cellmate, Cedrick Newton, told Detective Gosart that Appellant had told him the following about the crimes.7 Three younger men asked Appellant if he knew someone to rob. Appellant replied that he knew that Daniel had a large amount of money because he had seen it. Appellant met the three men at his home, and they drove to Daniel's house in a Mountaineer that they had stolen from the Four Seasons Apartments. The younger men went to the garage at the back of the house and tied up Daniel's father. They then encountered and shot Daniel. Appellant called the young men repeatedly to see why the robbery was taking so long. After it was over, the young men went back to the Four Seasons Apartments. Someone followed them when they left the scene, so they shot at him. Because they did not get any money from the attempted...
To continue reading
Request your trial
-
Wright v. State
...to the determination of the action more probable or less probable than it would be without the evidence." See Heard v. State , 309 Ga. 76, 84-85 (3) (b), 844 S.E.2d 791 (2020). "This is a binary question — evidence is either relevant or it is not." Id. at 85 (3) (b), 844 S.E.2d 791. The sec......
-
Pritchett v. State
...of identity – showing that a distinctive plan was used tends to prove that the same person executed both plans." Heard v. State , 309 Ga. 76, 87, 844 S.E.2d 791 (2020). And when other-acts evidence is admitted to prove identity, it "must satisfy a particularly stringent analysis." Id. at 88......
-
Tariq-Madyun v. State
...lay out the evidence in considerable detail and not only in the light most favorable to the jury's verdicts." Heard v. State , 309 Ga. 76, 77 (1) n. 2, 844 S.E.2d 791 (2020).The trial evidence showed that between 5 a.m. and 6 a.m. on October 13, 2018, a man robbed a fast food restaurant sho......
-
Moody v. State
...and the trial court improperly instructed the jury that it could use the other-act evidence as proof of motive. Heard v. State , 309 Ga. 76, 95 (3) (g), 844 S.E.2d 791 (2020)."In determining whether trial court error was harmless, we review the record de novo and weigh the evidence as we wo......
-
You Shall Not Pass! Georgia Court of Appeals Narrows the Admissibility of Prior Acts Character Evidence Under Georgia Evidence Rule 404(b)
...300 Ga. 303, 306, 794 S.E.2d 623, 628 (2016).64. Galvan v. State, 330 Ga. App. 589, 592, 768 S.E.2d 773, 777 (2015).65. Heard v. State, 309 Ga. 76, 82, 844 S.E.2d 791, 797 (2020).66. Wright, 362 Ga. App. at 890, 870 S.E.2d at 505.67. Heard, 309 Ga. at 82, 844 S.E.2d at 797.68. Id. at 82-83,......