Lofton v. State

• Decision Date: 01 July 2020
• Docket Number: S20A0196
• Parties: LOFTON v. The STATE.
• Court: Georgia Supreme Court

309 Ga. 349

846 S.E.2d 57

LOFTON

v.The STATE.

S20A0196

Supreme Court of Georgia.

Decided: July 1, 2020

Lynn M. Kleinrock, for appellant.

Daniel J. Porter, District Attorney, Lee F. Tittsworth, Samuel R. d'Entremont, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

Boggs, Justice.

Appellant Reginald Lofton challenges his 2016 conviction for being a party to felony murder predicated on the armed robbery and shooting death of pizza delivery driver Shane Varnadore. Appellant claims that the trial court made a number of evidentiary errors and that his trial counsel rendered constitutionally ineffective assistance in two respects. We affirm.¹

1. The evidence presented at trial showed the following.² In 2015, Appellant moved from Chicago to the Atlanta area to live with Porsha Porter, his older sister and legal guardian, after Appellant's mother died and his father was deemed unfit to care for him. Appellant and his older brother Malek Buckley lived with Porter and Porter's friend Ciara Harris in apartment 9301 of the Wesley Herrington Apartments in Lawrenceville; Appellant and Buckley shared one of the apartment's two bedrooms, and Porter and Harris shared the other. On March 1, 2016, Buckley's friend Jermaine Young was temporarily staying at the apartment but planned to leave the next day to return home to Chicago; Young slept on the couch in the living room. It was raining that evening, and Porter overheard Appellant offer to buy pizzas for the group.

According to cell phone records and testimony from Varnadore's supervisor at Papa John's, at 10:38 p.m., Appellant's prepaid Tracfone, rather than his cell phone that was linked to Porter's account, was used to call the Papa John's restaurant and order two regular pizzas, two dessert pizzas, pepperoncinis, garlic sauce, and soft drinks for delivery.³ The caller said that his name was "Josh" and asked for his order to be delivered to apartment 10108. Appellant's Tracfone was used to call Papa John's twice more while waiting for the order. The first time the caller asked whether the delivery driver could break a $100 bill, and the second time the caller asked for an update on the status of the order. Call records also showed that Varnadore called Appellant's Tracfone shortly before the shooting, and then shortly after that, the same Tracfone was used to call Young's cell phone.

Sometime after 11:15 p.m., Varnadore arrived at the apartment complex in his light green Toyota Prius to make the delivery. A man sitting in a car parked next to the 10000 building testified that he heard a gunshot and then saw a man stumble and fall into a nearby parking space. The police soon arrived and found Varnadore lying on the ground in a parking space, unresponsive and with a single gunshot wound to his upper left abdomen; police also found a spent .40-caliber Smith & Wesson shell casing several feet away. Varnadore had $62 in his pocket. He was taken to the hospital, where he was pronounced dead. Officers found a Papa John's plastic bag and an empty Papa John's thermal bag used to transport food in the breezeway near apartment 10108.

Call records for Appellant's Tracfone showed that it had been used several times before and after the shooting to call and receive calls from Young's cell phone.⁴ Young's Facebook profile made several references to Malek Buckley and to Appellant's Facebook profile, which was titled "Rayray Da Shoota." Detectives later discovered that both Appellant and Buckley lived in apartment 9301 in an apartment building adjacent to the crime scene.

Around 1:00 p.m. the following day, the Gwinnett County SWAT team arrived to execute a search warrant at Porter's apartment. Appellant, Young, Buckley, Porter, and Harris were all present. After officers announced their presence but before the apartment's occupants exited the apartment, Porter saw Young carry a box of pancake mix into the bedroom that Appellant and Young shared, and Harris saw Appellant try to hide a pizza box under Harris’ bed, but Harris retrieved the box and put it in the kitchen. Officers then located the following inside the apartment: (1) the Tracfone in the bedroom shared by Appellant and Buckley; (2) three Papa John's pizza boxes hidden behind a washing machine and another on a nightstand in a bedroom; (3) pieces of pizza wrapped in tin foil in the refrigerator and remnants in the kitchen garbage can; (4) pepperoncinis and garlic sauce cups inside a bathroom vanity; and (5) two boxes of pancake mix, one containing a .40-caliber Smith & Wesson semiautomatic handgun and the other with a handgun ammunition magazine inside.

Detectives took all of the occupants to the police station and interrogated each of them separately, interviewing Appellant last. Detectives advised Appellant of his Miranda rights,⁵ and he agreed to speak with them without an attorney present. Appellant's story changed significantly over the course of his roughly two-hour interview. He initially denied any knowledge of the shooting but eventually stated that Young was the shooter. Appellant claimed that Young ordered the pizzas using Appellant's Tracfone and was planning to rob the pizza delivery driver. Appellant admitted that he was aware of Young's robbery plan but claimed that he eventually decided to wait on the second floor near a staircase when Varnadore arrived because – as he had informed Young – he did not want to participate in the robbery plan; that Young approached Varnadore, who told Young, "[Y]ou might as well shoot me because you already pulled the gun out on me"; and that shortly thereafter Appellant heard a gunshot and took off running. Appellant repeatedly denied that he shot Varnadore and indicated that he was willing to undergo testing for the presence of gunshot residue, which never occurred. However, he admitted that hours before the shooting, he uploaded to his Facebook page a picture of him holding the handgun that was used to shoot Varnadore. Appellant also admitted that even though he took off running after hearing the gunshot, he came back to the breezeway, collected the pizza boxes, and brought them to Porter's apartment. Detectives later arrested both Appellant and Young.

At trial, the State's theory was that Appellant and Young committed the crimes as parties but that the evidence strongly indicated that Young rather than Appellant was the shooter. A GBI firearms examiner testified that the bullet recovered from Varnadore's body was fired from the handgun found in a box of pancake mix in Porter's apartment. Porter testified that on the night in question, she was jolted awake by a gunshot and left her bedroom to find Young and Buckley seated on a couch in the living room.

Porter said that she then walked outside, saw Appellant coming up the stairs with four pizza boxes in his arms, and asked him if he heard the gunshot; Appellant replied that he did not because he had his earphones in. Harris also testified that after hearing a gunshot, she came into the living room, that both Young and Buckley were there, and that she saw Appellant calmly entering the apartment with four pizza boxes in hand.

Buckley testified that he was asleep when Young woke him up and stated that he had "hit a lick,"⁶ that the pizza delivery guy flinched and the gun went off, and that Young thought that he shot the pizza delivery guy in the stomach or arm. Buckley further clarified that although both Young and Appellant were present when Young woke him up, Young stated that "he" (and not both he and Appellant) had "hit a lick."

Appellant did not testify at trial and did not call any witnesses. His defense theory was that although he was in the apartment with Young on the night of the shooting, it was Young who orchestrated and carried out the robbery; that to the extent that he was aware of Young's scheme, his youth allowed Young to influence him; and that he withdrew from any involvement upon realizing Young's full intentions.

Appellant does not challenge the legal sufficiency of the evidence supporting his conviction. Nevertheless, we address this issue in accordance with this Court's usual practice in murder cases. Although there was no evidence presented at trial that Appellant directly committed any of the charged crimes, OCGA § 16-2-20 (a) provides that anyone "concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime," and § 16-2-20 (b) explains that a person is "concerned in the commission of a crime" if he "intentionally aids or abets" the commission of the crime or "intentionally advises, encourages, hires, counsels, or procures" another person to commit the crime. We have also explained that

while mere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense.

(Citations and punctuation omitted.) McGruder v. State , 303 Ga. 588, 591 (II), 814 S.E.2d 293 (2018). Finally, a shooting is a reasonably foreseeable consequence of an armed robbery and thus a party to an armed robbery is culpable for felony murder if a fatal shooting occurs. See Frazier v. State , 308 Ga. 450, 453 (2) (a), 841 S.E.2d 692 (2020).

Here, the State presented strong evidence of Appellant's guilt as a party to the charged crimes, and the jury was charged on parties to a crime. See Frazier, 308 Ga. at 453 (2) (a), 841 S.E.2d 692. The State presented a photograph Appellant uploaded to his Facebook page hours before the shooting, which, as he admitted during his interview, depicted him holding the handgun that was used in the murder. Call records from Appellant's Tracfone showed that a short time after Appellant offered to order pizza, someone used his Tracfone to order the pizzas that Varnadore attempted...