Hill v. State

• Decision Date: 19 October 2020
• Docket Number: S20A0781
• Citation: 850 S.E.2d 110,310 Ga. 180
• Parties: HILL v. The STATE.
• Court: Georgia Supreme Court

310 Ga. 180

850 S.E.2d 110

HILL

v.The STATE.

S20A0781

Supreme Court of Georgia.

Decided: October 19, 2020

Leigh Stevens Schrope, Marcia Gail Shein, Law Firm of Shein & Brandenburg, 2392 North Decatur Road, Decatur, Georgia 30033, for Appellant.

Aslean Zachary Eaglin, Paul L. Howard, Lyndsey Hurst Rudder, Fulton County District Attorney's Office, 136 Pryor Street SW Suite C-640, Atlanta, Georgia 30303, Christopher M. Carr, Patricia B. Attaway Burton, Paula Khristian Smith, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

Ellington, Justice.

After Christina and Marshall Wellington were unable to pay a drug debt, Otis Hill shot them. Christina died; Marshall survived but lost an eye. Hill and Aviance Marshall ("Aviance"), who drove Hill and the Wellingtons to the location of the shooting, were charged with malice murder, attempted murder, kidnapping, and related offenses. Hill was convicted of kidnapping and murdering Christina, kidnapping, battering, and attempting to murder Marshall, and a weapons charge.¹ On appeal, Hill contends that the evidence was insufficient as to kidnapping. In addition, Hill contends that the trial court erred in using a deficient master jury list; in failing to determine whether a juror was proficient in English; in instructing the jury regarding note taking; in admitting evidence of cell site location information, the effects of cocaine on memory, and witness intimidation; in excluding evidence of the maximum penalty Aviance faced; in instructing the jury regarding the reasonable-doubt standard; and in denying his motion for a new trial on the general grounds. Hill also claims he received ineffective assistance of counsel. For the reasons explained below, we affirm, except that we vacate in part to correct sentencing errors.

Viewed in the light most favorable to the jury's verdicts, the evidence showed the following. The Wellingtons traveled to Georgia in August 2013 from their home in North Carolina so that Christina could obtain medical treatment. The Wellingtons both used cocaine regularly, and they met Hill and bought drugs from him a few times.

Early on the afternoon of August 22, the Wellingtons obtained about $200 worth of cocaine from Hill and consumed it in their room at the Sunset Lodge hotel near Decatur. Early that evening, Hill and his companion, Aviance, went to the Wellingtons’ room. Hill demanded to be paid for the drugs he had provided. The Wellingtons said that they could get him money the next day, but Hill pressed them to pay the debt immediately. He pulled a 9mm handgun and cocked it. At one point, Hill pressed the gun against Marshall's eye and repeatedly said that someone was going to die. After consulting with each other, the Wellingtons proposed that Hill take them out panhandling. Marshall told Hill that Christina's panhandling skills were "great" and she often made $4,000 in a month. Eventually Hill agreed to the plan. Marshall testified that he and his wife got in the car to go panhandling "not [of their] own will" but only to avoid the threat of death and that Hill "controlled everything."

The foursome left the Sunset Lodge, with Aviance driving. They went to a large shopping center, and Christina approached people in front of the WalMart, then at the gas station, and then near a Checkers restaurant. Christina succeeded in getting $20 or less, so the plan was abandoned for the evening. Marshall estimated that it was about 10:30 p.m. at that point.

Hill told the Wellingtons that he wanted them to go somewhere with him. After they headed toward Stone Mountain on the interstate, Hill directed Aviance to take a series of turns and then to stop when they were on McClure Road, a narrow gravel road off South Fulton Parkway in Union City, with no lights and no houses. Aviance stopped the car, and Hill told the Wellingtons to get out because they were going to walk back to Atlanta. After they walked a bit back toward the main road, the passenger side door opened, activating the car's interior lights, and Marshall saw Hill step out and raise the gun. The Wellingtons tried to run away, but Marshall was hit in the back and then in the leg. Then Hill shot Christina several times. Hill went back to the car and opened the door. Marshall heard the sound of a magazine clip being taken out of a gun and a clip being put in. Hill walked back to where Marshall was lying and shot him in the face. Hill got back into the car and left with Aviance.

The Wellingtons were discovered the next morning by a county work crew on McClure Road. Christina had died on the scene, with multiple gunshot wounds

to her head and back. Marshall's injuries included a shattered femur and a ruptured eye that could not be surgically repaired.

Marshall was taken to Grady Hospital, and the lead investigator spoke with him briefly before he was taken into surgery. Marshall told the investigator that he had been shot by "Gagg," whom he described as having a tattoo under his eye and wearing a blue-and-white polo shirt and blue cargo shorts. Marshall said that "Gagg" had told him that he was from Miami and was 32 years old. Marshall told the investigator that he had seen "Gagg" as a contact in the Verizon cell phone he shared with his wife, and he gave the investigator the phone number. He told the investigator that there was a car involved, which was driven by a woman.

The investigator obtained the Wellingtons’ phone records and saw several recent communications with a number having a Miami area code. The investigator determined that the number was associated with a Sprint account and learned from Sprint that the customer for the account was "Gage Hill" and the billing address was a Miami address.

An online investigation tool generated a list of people possibly associated with the Sprint account's billing address, including Hill and Aviance. The officer obtained Hill's birthdate – he was 32 years old – and driver's license photo and Social Security number. Cell phone location data showed that the phone associated with the Gage Hill account was within seven miles of the crime scene shortly after 11:00 p.m. on the night of the crimes.

The investigator prepared a photographic lineup that included Hill's photo and showed it to Marshall, who immediately identified Hill as the shooter. A detective obtained an arrest warrant for Hill. In a second photographic lineup, Marshall identified Aviance as the woman who drove the car that night.

Aviance testified against Hill as follows. Aviance had an on-and-off relationship with Hill since high school, Hill's nickname was Gage, and they had a young child together. He had a tattoo of her nickname, "Sunkist," on his face. When Hill was not with her, he lived with Ashley Williams. On the day of the crimes, Aviance asked Hill to repay her money he had borrowed, because she needed to give her mother money for rent. Hill said he would collect money he was owed for drugs. He called Christina, who said she was trying to get money from her mother or her sister, who were out of state. Hill was upset at getting "the runaround." Aviance drove Hill in her mother's silver Jetta to the Wellingtons’ hotel, after stopping to drop off their son at a friend's apartment. Hill pointed a gun at Marshall's eye and said, "y'all need to get the money like now." The Wellingtons offered to panhandle and convinced Hill by telling him that Christina had made a lot of money like that before, she was good at it, and "basically that's how they lived." After the panhandling effort was unsuccessful, Hill had Aviance drive on the interstate and exit at South Fulton Parkway. She knew that Williams lived off of South Fulton Parkway, so she assumed Hill wanted to be dropped off at Williams's house. Hill instead directed her in taking a few turns until they got to a dark gravel road that was bordered only by trees. Hill told the Wellingtons to get out, that they were going to walk back. Aviance started driving back toward the main road when Hill told her to stop. He got out of the car, and she saw his arm come up and heard about 10 gunshots. Hill walked back to the car and got something out of the door pocket. Aviance heard another shot, then Hill got back in the car and told her to go.

Williams testified as follows. In August 2013, after five years of dating on and off, she and Hill, whose nickname was Gage, were engaged and living together. Hill used the Miami phone number, and they called and exchanged text messages frequently. When Williams got home from work on August 27, she was met by a SWAT team with an arrest warrant for Hill. Williams consented to them going into her house, and they found Hill hiding in a closet and arrested him. Officers found a blue-and-white polo shirt and blue cargo shorts on the floor in the bathroom. The next day, Williams found an empty magazine for a 9mm handgun under a Miami Dolphins beach towel in the closet of the bedroom she shared with Hill; she called investigators, who collected the gun magazine.

The lead investigator testified about a statement Hill gave after waiving his right to remain silent. Hill told the investigator that he had sold about $300 worth of crack cocaine to Christina and that he had gone to collect that money because he needed it to help Aviance pay for her rent. He said that he picked up the Wellingtons at the hotel and drove them around to a WalMart and some gas stations to panhandle. Hill said that the Wellingtons only managed to get about $15 panhandling. Hill said the reason they ended up in Union City is because he was going to make them walk back to Atlanta to teach them a lesson. He admitted that he made Aviance drive to Union City, and he told the investigator to leave her out of it because she had "nothing to do with it." Hill denied having a gun and said that he had "been drinking all day" and was drunk, adding, "I don't remember killing anybody. I don't remember shooting anybody."

1. (a) Hill does not challenge the...