Lewis v. State, S12A0400.

• Decision Date: 25 June 2012
• Docket Number: No. S12A0400.,S12A0400.
• Parties: LEWIS v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 273

731 S.E.2d 51

12 FCDR 1986

LEWIS

v.The STATE.

No. S12A0400.

Supreme Court of Georgia.

June 25, 2012.

Charles H. Frier, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Deputy Dist. Atty., Christopher Michael Quinn, Sr. Asst. Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Jason Charles Fisher, Asst. Atty. Gen., Department of Law, for appellee.

HINES, Justice.

Willie Henry Lewis appeals his convictions for the malice murders of Xavier Dinkins and Kejaun Webb, as well as a variety of other crimes that occurred over a four-day crime spree.¹ For the reasons that follow, we affirm in part, vacate in part, and remand.

Construed to support the verdicts, the evidence showed that Lewis stole a dark colored Jeep Cherokee in DeKalb County on October 5, 2001, confronting the vehicle's owner, Robert Chandler, with a chrome .357 revolver. On October 7, 2001, Lewis accosted Travis Reid and Xavier Dinkins while they were walking along a street. He pointed a .357 chrome revolver at the two men and told them to lie on the ground. Lewis searched them, and, when he discovered that neither man had any money, said that they had three seconds to run before he would shoot. Both men ran; Lewis began firing, and Dinkins was fatally struck. Lewis then ran toward the Jeep Cherokee he had stolen from Chandler. Later that day, police officers responded to a report of a shooting at an apartment complex. There they found Kejuan Webb, fatally shot. After the shooting, a witness saw a man carrying a .357 chrome revolver running to a Jeep Cherokee like that stolen from Chandler. A bullet recovered from this crime scene was later identified as having been fired from a chrome .357 caliber revolver taken from Lewis's home.

On October 8, 2001, Lewis approached Antwon Cox and his younger brother, Herbert Cox, as they walked from Morris Brown College in Fulton County. Lewis produced a .357 caliber chrome revolver and told both brothers to lie on the ground. He searched the Cox brothers and found that Herbert had $30, but that Antwon had no money. Lewis told Antwon that he should thank Herbert for the fact that Herbert had some money, because Lewis had shot a person the day before because that victim did not have any money. Nonetheless, Lewis pointed the revolver at Antwon and pulled the trigger. However, the weapon did not fire, and Lewis fled.

On October 9, 2001, Freddie Perdue had just left class at Morris Brown College and was standing outside a dormitory on a nearby college campus with Walter Williams and Shavez Givens. Lewis and another man, both carrying chrome revolvers, approached and told the men that they would rob them. The assailants searched the victims' pockets; Perdue had only a cell phone, a business card holder, and a hair brush. Lewis told Perdue he would shoot him “anyway,” and as Perdue tried to run, Lewis shot him in the chest. Williams tried to flee, but was also shot by Lewis.

On October 10, 2001, Shanta Roman and Jabouri Denson were walking along a street when Lewis and Michael Noble approached them. Both men brandished pistols. Denson and Roman ran until they came to a building and a fence; they threw money to the ground, the assailants picked up the money, and Lewis fired at the two victims, saying he did so in retaliation for them making him run after them. Noble was captured shortly thereafter by police officers.

Police officers recovered Chandler's abandoned Jeep Cherokee; Lewis's fingerprints were found inside. Officers also executed a search warrant at Lewis's residence and recovered clothing consistent with victims' accounts of the perpetrator's clothing. Police also recovered two firearms: a .357 caliber chrome revolver and a .22 caliber chrome revolver. Ballistics tests revealed that the .357 revolver fired bullets that were recovered from the body of Dinkins, the scene of Webb's killing, and the scene of the attempted shooting of Denson and Roman.

1. During jury voir dire, a prospective juror testified that he believed that he and the prosecuting attorney were second cousins. Lewis contends that the prospective juror was thus disqualified from service and should have been struck for cause. See OCGA § 15–12–135(a).² “But the mere fact that the juror was disqualified, standing alone, is not sufficient to require the grant of a new trial. The accused must go further and show that neither he nor his counsel had knowledge of such disqualification.” Williams v. State, 206 Ga. 107, 109(2), 55 S.E.2d 589 (1949).

The disqualification of a juror ... may be expressly or impliedly waived by a party having cause to complain, and if expressly or impliedly waived, it is conclusively presumed that no harm or benefit to either party resulted from the disqualification, and where it appears that the party having cause to complain either knew of the relationship or could have discovered it by the timely exercise of ordinary diligence, and remained silent, that party will be presumed to have waived the disqualification.

Reid v. State, 204 Ga.App. 358, 360(2), 419 S.E.2d 321 (1992).

The record reveals that, despite the prospective juror's statement in open court, Lewis never sought to have him dismissed for cause. Thus, Lewis has waived his right to raise the issue on appeal.

2. The search of Lewis's home yielded a .22 caliber chrome revolver. Lewis objected to the admission of this pistol into evidence on the ground that no testimony showed that a .22 caliber pistol was used in any of the crimes, it was not relevant, and that the admission was sought for “the purpose of prejudicing the accused.” However, possession of a firearm does not impute bad character. Henderson v. State, 272 Ga. 621, 622(2), 532 S.E.2d 398 (2000). In any event, as the State contended at trial, the .22 caliber chrome revolver was admissible because at least one witness had reported that, as to some of Lewis's crimes, he worked in concert with another assailant who also held a chrome revolver, and this .22 caliber chrome pistol was thus relevant as it could have been provided by Lewis to an accessory. See Tyler v. State, 251 Ga. 381, 382(2), 306 S.E.2d 263 (1983).

3. Lewis contends that the trial court incorrectly admitted hearsay evidence from three witnesses.

a.) Over Lewis's hearsay objection, Rocky Phillips, a security guard at a college campus near where the crimes against the Cox brothers took place, was permitted to testify as to what one of the Cox brothers told him regarding the crimes. The report was made to Phillips shortly after the crimes were committed; Phillips was not able to name which brother told him what had occurred, but he had spoken only to one of them, and it was “the one that wasn't shot.” Antwon Cox testified prior to Phillips's testimony that Lewis had attempted to shoot him, but Lewis's revolver did not fire, and that he had given a report to a campus security guard. Antwon Cox also testified that only one man had accosted him and his brother on October 8, 2001; Phillips testified that on October 7, 2001 [sic], Antwon Cox told him that “two or three” men had attempted to rob him and his brother.

At trial, the State asserted that Phillips's testimony was admissible as part of the res gestae. See OCGA § 24–3–3; Inman v. State, 281 Ga. 67, 70(3)(b), 635 S.E.2d 125 (2006) (“A victim's statement made within minutes of a crime and to an officer responding to his call for help is admissible under the res gestae exception.”) In any event, regardless of whether Phillips's testimony came within the res gestae exception to the hearsay rule, given the differences between Antwon Cox's testimony and that of Phillips, the fact that Phillips's testimony did not directly implicate Lewis, and in light of the overwhelming evidence implicating Lewis in the crimes alleged, it is highly probable that the admission of this evidence did not contribute to the verdicts. See Edmond v. State, 283 Ga. 507, 510–511(6), 661 S.E.2d 520 (2008); Heard v. State, 274 Ga. 196, 199(6), 552 S.E.2d 818 (2001). ³

b.) Lewis also made a hearsay objection to the testimony of Atlanta Police Officer Davis regarding what Williams told Davis at the scene shortly after Williams was shot. The trial court permitted the admission of the evidence under the res gestae exception to the hearsay rule. This was not error; the statement was made minutes after the shooting in the midst of the chaos of the crime scene, while emergency services were provided to Williams and Perdue. See Sanford v. State, 287 Ga. 351, 354–355(2), 695 S.E.2d 579 (2010); Morgan v. State, 275 Ga. 222, 225(5), 564 S.E.2d 192 (2002). In any event, the content of Davis's testimony regarding what Williams told him was substantially the same as that to which Williams testified directly at trial; of the two assailants who accosted Williams, Perdue, and Givens, it was the man who had gold teeth who shot Williams and Perdue. Accordingly, any erroneous admission of Davis's testimony was harmless as the evidence was cumulative, and thus it is highly probable that Davis's testimony did not contribute to the verdicts. See Johnson v. State, 289 Ga. 22, 27(4), 709 S.E.2d 217 (2011); Morris v. State, 280 Ga. 179, 180(2)(a), 626 S.E.2d 123 (2006); White v. State, 273 Ga. 787, 791(4), 546 S.E.2d 514 (2001).

c.) Marquez Miguel Heard was named as a co-indictee with Lewis as to the crimes against Williams, Perdue, Givens, and the Cox brothers. Over objection, the trial court allowed Jesse Jones to testify that Heard told him that Heard and Lewis had committed robberies at Morris Brown College. Lewis was not present when Heard made this statement to Jones.

The State contends that the statement was admissible under OCGA § 24–3–5⁴ as the statement of a co-conspirator; Lewis contends that no conspiracy between him and Heard was shown so as to make the statement admissible.

Under OCGA § 24–3–5, the State must...