Lebis v. State

• Decision Date: 11 December 2017
• Docket Number: S17A0948
• Court: Georgia Supreme Court
• Parties: LEBIS v. The STATE.

302 Ga. 750

808 S.E.2d 724

LEBIS

v.The STATE.

S17A0948

Supreme Court of Georgia.

Decided: December 11, 2017

Reconsideration Denied January 16, 2018

Martin Brothers, John R. Martin, Sandra L. Michaels, for appellant.

Tracy Graham Lawson, District Attorney, Jeffrey M. Gore, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.

Grant, Justice.

Following a jury trial, Lisa Ann Lebis appeals her convictions of felony murder and other crimes related to the shooting death of Officer Sean Callahan.¹ Lebis contends that the evidence was insufficient to support the verdict with regard to a number of counts against her and that trial counsel rendered ineffective assistance in the case. For the reasons set forth below, we affirm in part and reverse in part—affirming Lebis's convictions of two of the misdemeanor obstruction counts, all of the counts regarding possession of firearms and dangerous weapons, and of felony murder; but reversing her conviction of the other two misdemeanor obstructions.

I.

Viewed in the light most favorable to the verdict, the record shows that Lebis and her husband, Tremaine, had been staying in a rented motel room near their home for eight days, but they were asked to vacate the room after failure to pay. Lebis cursed at motel staff, who called 911 to report Lebis's unruly behavior. Shortly thereafter, Officer Waymondo Brown and Officer Callahan arrived to investigate. After talking to motel staff, they proceeded to Lebis's room, where they discovered Lebis and Tremaine moving items into the motel breezeway. Officer Brown asked them to stop what they were doing, and he discovered that the room that they had been staying in was severely soiled and damaged. After inspecting the motel room, Officer Brown walked out and gave a hand signal to Officer Callahan to indicate that they were going to place Lebis and Tremaine under arrest. Officer Brown did not see the fanny pack that Tremaine was wearing at that time, and neither officer knew that Tremaine was carrying a handgun in the fanny pack.

Officer Brown grabbed Tremaine's right arm and told Tremaine to put his left arm behind his back and keep it there. Lebis became irate, and started yelling very loudly at Officer Brown to leave Tremaine alone. Officer Brown testified that Lebis's screaming was "not assisting" with the execution of the arrest. Tremaine struggled, was ultimately tasered without full effect, and broke free and ran behind the motel. Officers Brown and Callahan pursued, with Officer Callahan in the lead. During the pursuit, Tremaine pulled his gun, a .357 caliber Glock, from the fanny pack and began shooting, fatally wounding Officer Callahan. Officer Brown returned fire, killing Tremaine. Officer Brown ran to Tremaine, kicked away his gun, and went to assist Officer Callahan, who had fallen over a retaining wall.

Officer Brown tried to move Officer Callahan, but was unable to do so. Instead, he began to administer CPR, which he continued to do for approximately two minutes. At that point, Lebis appeared at the top of the retaining wall and started yelling at Officer Brown, asking him if he killed her husband. At that moment, Officer Brown realized that he had not secured Tremaine's weapon, making him vulnerable. Officer Brown pointed his gun at Lebis with one hand while trying to maintain pressure on Officer Callahan's gunshot wound with the other. Officer Brown yelled at Lebis repeatedly until she showed him her hands so he could see that she was unarmed. Officer Brown then resumed CPR on Officer Callahan.

In response to an emergency alert sent by Officer Brown, Officer Alex Frazier next reported to the scene and found Lebis, who had come back from behind the building, standing next to the patrol cars parked in front of the motel. Officer Frazier pointed his firearm at Lebis and ordered her to show him her hands. At the time, she was talking on a cell phone, with one hand holding the cell phone and the other down by her pocket area. Lebis did not comply with Officer Frazier's commands. Instead, she began to move in his direction. Officer Frazier instructed Lebis to get on the ground, but she did not comply and kept advancing. Another officer, who had then arrived at the scene, approached Lebis from behind, took her to the ground, and restrained her. Later, Officer Joshua Waites arrived on the scene. By that time, Lebis was being held in the back of a patrol car. Officer Waites opened the door in an attempt to search Lebis for weapons, and she started kicking him wildly.

Numerous dangerous weapons and firearms were recovered from the scene. The weapon that Tremaine used to shoot Officer Callahan was a modified .357 caliber Glock handgun. The following guns and ammunition were removed from the motel room shared by Lebis and Tremaine: a shotgun, a modified 9mm handgun, 20 live rounds of .357 Winchester ammunition, 30 live rounds of 9mm ammunition, and 16 shotgun shells. Additional weaponry taken from the motel room included harpoon-like rocket motors with attached razor tips, a homemade silencer, a razor blade, two knives, a laser scope, and a homemade bandolier for shotgun shells. The weapons were found inside boxes and luggage, with some wrapped in clothing and several others in plain view. When interviewed by police after Officer Callahan's shooting, Lebis admitted that she knew that Tremaine carried a gun in his fanny pack during his flight from police, but she denied knowledge of the other weapons in the motel room. She did admit that she knew the person from whom Tremaine purchased weapons.

With regard to the convictions Lebis does not challenge in this appeal,² the evidence was sufficient to enable a jury to find her guilty beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As for the convictions Lebis does challenge, we consider each one in turn.

II.

Lebis's challenge to her convictions of all five possession counts and of felony murder are interrelated because the felony murder charge's predicate felony was the alleged possession of a firearm—the murder weapon—by a convicted felon. Lebis contends that there was insufficient evidence to support her convictions on Counts XII and XIII charging her with possession of dangerous weapons and on Counts XIV, XV, and XVI charging her with possession of firearms by a convicted felon. The possession counts all concerned the various weapons and firearms recovered after the murder, which occurred when Tremaine fled from the motel room he and Lebis shared for eight days. Lebis also argues that the evidence was insufficient to support her conviction, as a party to the crime, of felony murder predicated on possession of the weapon Tremaine pulled from his fanny pack at the time of the killing. We find that the evidence was sufficient to support Lebis's convictions on all of these counts.

Before turning back to the facts of this case, some background is appropriate. It is true that "[p]ossession of contraband may be joint or exclusive, and actual or constructive." In the Interest of D.H., 285 Ga. 51, 52 (1), 673 S.E.2d 191 (2009) (punctuation omitted). Actual possession means knowing, direct physical control over something at a given time. Id. For constructive possession, the standard is also well-understood: if a person has both the "power and the intention at a given time to exercise dominion or control" over a thing, then the person is in constructive possession of that thing. State v. Lewis , 249 Ga. 565, 567, 292 S.E.2d 667 (1982) ; Jones v. State , 339 Ga. App. 95, 98 (1) (a), 791 S.E.2d 625 (2016) ; Holiman v. State , 313 Ga. App. 76, 78 (1), 720 S.E.2d 363 (2011) ("A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion and control over a thing is then in constructive possession of it.") (citation and punctuation omitted); Murray v. State , 309 Ga. App. 828, 830, 711 S.E.2d 387 (2011) (applying same standard to possession of a weapon). Mere proximity to contraband, absent other evidence connecting a suspect with that contraband, is not enough to establish constructive possession. Mitchell v. State , 268 Ga. 592, 492 S.E.2d 204 (1997). If one person alone has actual or constructive possession of a thing, then the person is in sole possession of it. Lewis , 249 Ga. at 567, 292 S.E.2d 667. If two or more people share actual or constructive possession of a thing, then their possession is joint. Id.

Constructive possession can be proven—and very often is proven—by circumstantial evidence. See Holiman , 313 Ga. App. at 80 (1) (b), 720 S.E.2d 363. Of course, as with any charge based on purely circumstantial evidence, in order to support a conviction "the evidence must exclude every reasonable hypothesis, save that of constructive possession by the defendant." Id. ; see also Smiley v. State , 300 Ga. 582, 586 (1), 797 S.E.2d 472 (2017) (citing OCGA § 24–14–6 (2013)). As we have noted, proximity to contraband is plainly not enough. Stacey v. State , 292 Ga. 838, 840 (1) (a), 741 S.E.2d 881 (2013). But as this Court has also held, consistent with OCGA § 24–14–6, "questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and ... that finding will not be disturbed unless the verdict of guilty is unsupportable as a matter of law." Robbins v. State , 269 Ga. 500, 501 (1), 499 S.E.2d 323 (1998) ; see also Dixon v. State , 298 Ga. 200, 202 (1), 779 S.E.2d 290 (2015). In other words,

whether the evidence shows something more than mere presence or proximity, and whether it excludes every other reasonable hypothesis, are questions committed principally to the trier of fact, and we [should] not disturb the decisions of the trier of fact about these

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