Hicks v. State

• Decision Date: 02 June 2014
• Docket Number: No. S14A0396.,S14A0396.
• Court: Georgia Supreme Court
• Parties: HICKS v. The STATE.

295 Ga. 268

759 S.E.2d 509

HICKS

v.The STATE.

No. S14A0396.

Supreme Court of Georgia.

June 2, 2014.

Walker L. Chandler, Fayetteville Office of the Circuit Public Defender, Fayetteville, for appellant.

Patricia B. Attaway Burton, Dep. Atty. Gen., Department of Law, Joshua Daniel Morrison, Senior Asst. Dist. Atty., Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Dep. Dist. Atty., Fulton County District Attorney's Office, Atlanta, for appellee.

THOMPSON, Chief Justice.

Appellant Latilia Hicks, Leo Sanders, Darrian Pye, and Lorenzo Chambers were jointly indicted for felony murder and numerous other crimes relating to the shooting death of Maynon Freeman.¹ Sanders pled guilty to voluntary manslaughter and testified against the remaining defendants, who were tried together. Appellant and Pye were found guilty on all counts, and Chambers was found not guilty on all counts.² In her appeal, appellant contends, among other things, that the evidence is insufficient to support her convictions and that her trial counsel provided ineffective assistance. For the reasons that follow, we affirm.

1. Viewed in the light most favorable to the verdict, the evidence shows that about 4:00 a.m. on June 27, 2005, the victim was shot once in the back of the head with an AK–47 rifle shortly after he drove his family's blue Ford Expedition into the driveway of his family's home at 3790 Clearwater Drive in College Park, Georgia. A few days before, on June 23, 2005, Pye called the Fulton County Police Department and told an officer that the rims to his car had been stolen; that some friends of his had seen a blue Ford Expedition with what looked like his rims on it; and that his friends followed the Expedition to a house at 3760 Clearwater Drive in College Park, Georgia. That address, however, was several houses away from the Freemans' residence. The next day, a police officer drove by that address and did not see a blue Ford Expedition there, and the lead was not pursued thereafter.

On June 26, 2005, appellant, who lived in Florida, came to Atlanta to visit Sanders, with whom she had been in a long distance relationship for several weeks. About 11:00 p.m. that night, she and Sanders met Pye and Chambers in the parking lot of a skating rink. Sanders was friends with Pye but had not previously met Chambers. The victim and his brother, Dominique Freeman, were also at the skating rink, having driven there with two women in the family's blue Ford Expedition. Sanders testified that while he was talking with Pye and Chambers at Pye's car, Pye pointed out the blue Ford Expedition, claimed that the vehicle's rims had recently been stolen from him, and said that he planned to recover the rims. Sanders saw an AK–47 rifle in the back seat of Pye's car. According to Sanders, appellant was not with him at that time but was instead standing by her car.

Appellant then approached the SUV by herself and began talking to Dominique Freeman, who gave her his cell phone number, and the two agreed to meet at the 20 Grand nightclub later that night. Appellant rejoined Sanders, Pye, and Chambers, and they drove in Pye's and appellant's cars to a hotel in College Park where appellant and Sanders were staying. There, the AK–47 was moved from Pye's car to the trunk of appellant's car. Sanders testified that he did not know how the AK–47 got into appellant's car, but he admitted that he told a police officer before trial that Pye told him to open the trunk when they were at the hotel. The four then drove appellant's car to the 20 Grand nightclub. The Freeman brothers were there. Appellant approached them and then left with them and the two women who were with them in the blue Expedition. They drove to the Freeman residence, and during the ride, appellant told Dominique that they should have sex at a hotel. Pye, Chambers, and Sanders also left the nightclub, drove down the street on which the Freemans lived, and then to a nearby gas station. About 2:00 a.m., appellant left the Freeman residence with the brothers and the two women. The two women were dropped off at a game room, and appellant and the Freeman brothers drove to a hotel in Union City. Sanders, Pye and Chambers followed the brothers' SUV in appellant's car. Appellant and Dominique entered the hotel, while Maynon drove off in the SUV. Cell phone records presented at trial revealed that appellant was in communication with Sanders throughout this time.

After Maynon left the hotel, Sanders, Pye and Chambers followed him to a Waffle House near Maynon's home. Maynon stopped to get food, but the three men did not. Instead, they drove to the victim's neighborhood and parked two houses away from his house. Sanders testified that, “from the beginning, it [was] supposed to be a confrontation,” but that he did not think Maynon would be shot. The men exited their car and walked to the Freeman residence to wait for Maynon to arrive. When he did and was confronted by the men, he ran. One of the men fired a shot from the AK–47, striking Maynon in the back of the head and causing his death, and then placed the AK–47 in the trunk of appellant's car. Several neighbors of the Freemans heard the shot, which they said occurred shortly after 4:00 a.m. Pye took Maynon's keys and drove the SUV to a middle school, while Sanders and Chambers drove appellant's car back to the Union City hotel.

Back at the hotel, appellant initiated intimate contact with Dominique, but then stopped it to talk on the phone. After speaking on the phone a number of times, appellant told Dominique that she was going to get ice. Instead, however, appellant met Sanders and Chambers in the parking lot and left the hotel with them. Sanders called Pye about 5:00 a.m. to find out where Pye had gone, and the group from the hotel then drove to the middle school. A few minutes later, a City of Atlanta police officer who was responding to an unrelated silent alarm going off at the school drove into the school parking lot. Sanders told appellant to drive away while he stayed with the SUV, and Pye and Chambers fled the scene on foot. Appellant then picked up Pye and Chambers and dropped them off with the gun at another location. Meanwhile, the officer, who testified that it looked like someone was attempting to take “some wheels” off the Ford Expedition, questioned Sanders, who gave the officer his younger brother's name. After dropping off Pye and Chambers, appellant returned to the school, where she was also questioned by the officer. Finding no outstanding warrants on Sanders or appellant and no stolen vehicle reports for either vehicle, the officer eventually let them leave in appellant's car and towed the SUV. The officer's investigation lasted about an hour, and cell phone records show that Sanders called Pye at 6:27 a.m. After being released by the officer, Sanders and appellant checked out of their hotel room in College Park and left for Florida.

The police officer who spoke with Pye on June 23 about his stolen rims also responded to the crime scene at the Freeman home on June 27. He remembered Pye's call and the Clearwater Drive address that Pye had provided and told the investigating homicide officer about it. On September 29, 2005, Pye was arrested; Chambers was arrested on October 3; and Sanders and appellant were arrested in Florida in October and November 2005, respectively.

At trial, Sanders denied that appellant, whom Sanders referred in a pre-trial statement as his “future wife,” knew of or participated in the plan to recover Pye's rims. However, Sanders admitted that he told the police shortly after his arrest that “she was involved, knew what was going on, had been told to get in the [Expedition], and report back to [him] on the [its] location.” On another occasion, Sanders admitted that he had told police that Pye told appellant “to get in the Expedition.”

Appellant contends that the evidence is insufficient to support her convictions. She correctly says that all of the crimes with which she was charged—aggravated assault with a deadly weapon, armed robbery, hijacking a motor vehicle, the conspiracy to commit armed robbery and hijacking a motor vehicle, and felony murder predicated on those offenses—require the use of a firearm. See, e.g., OCGA § 16–5–21(a)(2) (aggravated assault with a deadly weapon); OCGA § 16–8–41(a) (armed robbery); OCGA § 16–5–44.1(b) (hijacking a motor vehicle). Appellant argues that the State had to prove that she participated in the crimes with knowledge that one of her co-conspirators had an AK–47 and that the State failed to offer sufficient proof of that element.

Contrary to appellant's contention, there is some evidence by which the jury could infer that appellant knew of the rifle. Sanders's prior inconsistent statements were that appellant had knowledge of “what was going on [and] had been told to get in the [Expedition] and report back to [Sanders] on [its] location.” Further, appellant did get in the Expedition; she told Dominique that she wanted to have sex with him even though she was dating Sanders, thereby isolating the victim and making it easier for her confederates to take back the rims; the rifle was moved from Pye's car to the trunk of her car at the hotel in which she was staying; and she helped Pye and Chambers escape with the rifle after the police officer arrived at the middle school. We need not decide whether this and other evidence is sufficient to prove beyond a reasonable doubt that she knew of the rifle, because appellant is wrong that she had to have knowledge of the weapon to be convicted of the charged crimes.

[A] criminal conspiracy is a partnership in crime, and ... there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This...