Jackson v. State

• Decision Date: 19 October 2020
• Docket Number: S20A0939
• Citation: 310 Ga. 224,850 S.E.2d 131
• Parties: JACKSON v. The STATE.
• Court: Georgia Supreme Court

310 Ga. 224

850 S.E.2d 131

JACKSON

v.The STATE.

S20A0939

Supreme Court of Georgia.

Decided: October 19, 2020

Wilbur John Wilson, Chattahoochee Circuit Public Defender's Office, 1017 red maple way, Columbus, Georgia 31904, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Elizabeth Rosenwasser, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Julia Anne Fessenden Slater, District Attorney, Benjamin E. Gephardt, Chattahoochee Judicial Circuit District Attorney's Office, 100 Tenth Street, Columbus, Georgia 31902-1340, Attorneys for the Appellee.

Boggs, Justice.

In this out-of-time appeal, Appellant Antwan Antonio "Rico" Jackson challenges his 2010 convictions for felony murder and attempted cocaine trafficking in connection with the shooting death of Christopher L. Hoskin. Appellant contends that the evidence was insufficient to support his convictions; that the trial court erred in failing to quash the two counts of the indictment on which he was convicted; that the court erred in allowing the State in closing argument to denigrate defense counsel and to vouch for a prosecution witness; and that the court committed plain error in failing to instruct the jury that a sentence of life imprisonment was mandatory if the jury found him guilty of either of two murder charges.

As explained below, the evidence was legally sufficient to support Appellant's convictions, but the trial court erred in entering a judgment of conviction and sentence on the guilty verdict for attempted cocaine trafficking, which merged into the related felony murder conviction. Appellant failed to preserve for appellate review his claims relating to the indictment and the State's closing argument by not raising them at the appropriate time in the trial court, and we have previously held that it is not plain error for a trial court not to charge the jury that a sentence of life imprisonment is mandatory if the jury finds the defendant guilty of either malice murder or felony murder. Accordingly, we vacate Appellant's conviction and sentence for attempted cocaine trafficking, but we otherwise affirm the trial court's judgment.¹

1. "It is incumbent upon the Court to question its jurisdiction in all cases in which jurisdiction may be in doubt." Woods v. State , 279 Ga. 28, 28, 608 S.E.2d 631 (2005). The State contends that we lack jurisdiction to decide this appeal based on our recent decision in Pounds v. State , ––– Ga. ––––, 846 S.E.2d 48 (2020), where we held that an untimely motion for new trial that the trial court improperly denied on the merits (rather than dismissing as untimely) ripened on the grant of an out-of-time appeal, making any appeal premature until the trial court disposed of the newly timely motion for new trial. We explained:

[B]ecause a trial court order denying a late-filed and untimely motion for new trial on the merits is, and remains, invalid when an out-of-time appeal is granted, the motion for new trial itself – which becomes ripe, though it was initially late-filed – remains pending because no court has issued a valid legal judgment resolving it. And because the motion for new trial is pending, any notice of appeal to an appellate court has not yet ripened, ... and absent an applicable exception such as an interlocutory appeal as provided in OCGA § 5-6-34 (b), any appeal must be dismissed.

Pounds , ––– Ga. at ––––, 846 S.E.2d at 55 (emphasis, citation, and punctuation omitted). For present purposes, the key to our holding in Pounds is the phrase "on the merits," a term that the opinion repeated no less than a dozen times.

Here, although the trial court said in its January 2019 order that Appellant's motion for new trial was "denied" rather than "dismissed," the order included an express finding that the motion was untimely and did not address the merits of the new trial motion. The court's order was, in substance, an order dismissing Appellant's new trial motion as untimely, not an order denying the motion on the merits. See Brooks v. State , 301 Ga. 748, 752, 804 S.E.2d 1 (2017) ("[A] trial court's mere ‘denial’ of a motion it lacks jurisdiction to decide without more cannot be assumed to be a decision on the merits ...."). See also First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc. , 282 Ga. 883, 885, 655 S.E.2d 605 (2008) ("[T]he appealability of an order is determined, not by its form or the name given to it by the trial court, but rather by its substance and effect."). The court's January 2019 order, which was issued prior to the grant of an out-of-time appeal in January 2020, validly disposed of Appellant's new trial motion. See Pounds , ––– Ga. at ––––, 846 S.E.2d at 54 ("[D]ismissal of an untimely motion is the proper disposition for a late-filed motion for new trial ...."). As a result, there is no motion for new trial pending in the trial court. Accordingly, we reject the State's jurisdictional challenge.

2. (a) Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. Tashcha Grant knew Hoskin from her time living in Phenix City, Alabama, where Hoskin also lived, and Grant and her boyfriend Dantrelle Prince had purchased crack cocaine and marijuana from Hoskin in the past. Prince and Appellant had been friends for six or seven years, and on February 18 and 19, 2007, Prince talked to Appellant about buying drugs from Hoskin. Prince told Appellant that he got a "better deal" from Hoskin than Appellant had been getting from other drug dealers. On the afternoon of February 19, Grant contacted Hoskin for Prince and Appellant and allowed them to use her cell phone to arrange to purchase a large amount of cocaine from Hoskin. Hoskin asked Prince to come with Appellant and to bring Grant's cell phone, because Hoskin did not want too many people to have his number.

Later that night, Prince and Appellant left to meet Hoskin near Cusseta, Georgia. Hoskin led them to a house off Highway 27, but there were numerous cars there, so Appellant used Grant's cell phone to call Hoskin and arrange a new meeting place on Gatford Road just off Highway 27. Prince passed Appellant a bag with $4,000 in cash to buy the cocaine and waited in the car while Appellant approached Hoskin's Ford Expedition. Prince heard conversation between Appellant and Hoskin and then multiple gunshots. Appellant ran back to the car, got in, and sped away, telling Prince that he thought that Hoskin was reaching for a gun, so he "shot [Hoskin] through the truck and started running, shooting back." Appellant said that he fired first and that Hoskin never got to his gun. Appellant asked "if he had to worry about [Prince] snitching on him," and Prince said no. Prince told Grant when he got home that Appellant shot Hoskin.

At 10:17 p.m., officers responding to a report of an accident found Hoskin lying across the front seat of his SUV with gunshot wounds

to his chest and left forearm and no pulse. There were bullet marks on the hood and windshield. Inside the SUV, officers found Hoskin's wallet, two cell phones, and a small amount of crack cocaine, but no firearms, shell casings, or bullets. Officers canvassed the scene and found six shell casings and two clear plastic bags of what appeared to be crack cocaine on Gatford Road. A GBI forensic chemist later determined that the substance in the plastic bags weighed 93.47 grams and was 46.4% pure cocaine.

The morning after the shooting, Prince and Grant went to Prince's father's house. While they were there, Appellant drove up to the house, threw up his hands, and stated, "I had to do it." Appellant said that he thought that Grant had set him up to be robbed and that Grant was the only person "that could get him caught up on this charge." Appellant then threatened to "burn" Grant or "take [her] out if [she] would say anything or told," and Prince's father assured him that Grant would not provide any information against him. Appellant later told Tameika Tarver and Christopher McClendon that he shot Hoskin. Three or four days after the shooting, Appellant and Prince fled to Texas to avoid law enforcement.

Appellant contends that the evidence was insufficient to support his convictions under the federal due process standard. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When properly viewed in the light most favorable to the verdicts, however, the evidence presented at trial and summarized above was sufficient as a matter of constitutional due process to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See id. See also Vega v. State , 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " (citation omitted)).

(b) Appellant also contends that the evidence was insufficient to support his convictions under former OCGA § 24-4-6, which said: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."² However, this doctrine applies only where the State's case against the defendant was " ‘wholly circumstantial,’ " Hill v. State , 297 Ga. 675, 678, 777 S.E.2d 460 (2015) (citation omitted), and here, the State did not rely solely on circumstantial evidence. There was substantial direct evidence in the form of not only Prince's and Grant's testimony about Appellant's arranging to purchase a large amount of cocaine from Hoskin and going to meet him to complete the transaction, but also Appellant's admissions to Prince, Grant, Tarver, and McClendon that he shot Hoskin. Appellant disputes the credibility of

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