Moon v. State

Decision Date21 June 2021
Docket NumberS21A0454
CourtGeorgia Supreme Court
Parties MOON v. The STATE.

Kirby Clements, Jr., The Clements Law Group, LLC., 3300 Buckeye Rd., Suite 262, Atlanta, Georgia 30341, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Margaret Ellen Heap, District Attorney, Office of the District Attorney Eastern Judicial Circuit, P. O. Box 2309, Savannah, Georgia 31402, Bradley Robert Thompson, A.D.A., Office of the District Attorney Eastern Judicial Circuit, Chatham County Courthouse, 133 Montgomery Street, Savannah, Georgia 31401, for Appellee.

Ellington, Justice.

A Chatham County jury found Walter Terry Moon, Jr., guilty of murder and other offenses in connection with the shooting deaths of Emily Pickels and Michael Biancosino. Moon challenges the sufficiency of the evidence, and he contends, among other things, that the trial court erred by denying his motions to suppress evidence and to sever a count of the indictment, by admitting evidence that he committed a prior crime, and by removing a holdout juror during deliberation without sufficient cause. We agree that the trial court abused its discretion in removing the holdout juror, and because the error is presumed harmful, we reverse Moon's convictions, address those issues likely to recur upon retrial, and remand for a new trial.1

Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial showed as follows. On September 1, 2012, Michael Biancosino drove Emily Pickels home in his white Buick Riviera. At about 3:30 a.m., he stopped the car about 100 feet from Pickels's apartment in Frazier Homes in Chatham County. Before Pickels could get out, a masked gunman crept up to the car and opened fire with an SKS or AK-47-type rifle. The gunman walked around the Buick, firing into it repeatedly. As Biancosino tried to drive away, the gunman kept firing. Biancosino's Buick rolled to a stop after it crashed through a brick wall. The gunman ran back to a waiting car and got in the passenger side. The car then sped away. Biancosino and Pickels died as a result of multiple wounds caused by high-velocity rounds. After a lengthy investigation, the police determined that the gunman was Sidney Grant.2 Grant and his accomplice, appellant Walter Moon, had been out that night looking for Ron Allen with the intention of killing him. Allen, who frequented the area where the crimes occurred, owned a car that was almost identical to the one occupied by Pickels and Biancosino.

Based on witness testimony and surveillance video from the area where the shooting occurred, the police determined that the gunman had been driven to and from the scene of the shooting in a silver 2012 Chevrolet Sonic. Surveillance video showed the Sonic following the Buick to the apartment complex and the gunman emerging from the passenger side of the Sonic. Information about the car led the police to Kiawana Williams, who was then living with Grant. The police learned that Williams was driving cars rented for her by her mother. On August 31, 2012, Williams started driving the Sonic because the silver Dodge Caliber that she had been driving had developed brake trouble. Williams testified that she often loaned her rental cars to Grant and Moon while she was at work. She also purchased pre-paid phones for the men. Williams said that, just hours before the shooting, she loaned the Sonic to Grant and Moon, and that Moon was driving. Another witness also testified that he had seen Moon and Grant in the car together on the night of the shooting, and that Moon was driving.

A few days after the shooting, the police searched the Sonic and Williams's home. They found a camouflage mask in the car. Saliva found inside the mask tested positive for Grant's DNA. The police found Moon's fingerprints on the exterior of the car and on a soda can in the car's console. The police also found receipts in the car indicating that Grant had the car's windows tinted before the shooting and the windshield repaired shortly after the shooting. One witness testified to seeing a "finger-sized" hole in the glass. Another witness identified Grant as the person who had the windshield repaired.

The police also executed a search warrant on Moon's home. They recovered pre-paid cell phones from Moon's bedroom. In a locked shed on the property, the police found high-velocity rounds like those used to kill the victims, a bullet-proof vest, and two loaded rifles capable of firing the high-velocity rounds. Forensics experts determined that neither weapon, however, had fired the bullets that killed the victims. Based on information from Williams and other witnesses, the police determined that the phones had been used by Grant and Moon. The police determined that one of the phones had connected to a cell tower three blocks from the scene of the shooting around the time of the shooting. The phones also showed frequent text activity between Moon and Grant before and after the shooting, but not during the shooting.

After Moon was arrested, Tarus Green, an acquaintance of Moon's who was also in jail on unrelated charges, told a detective that Moon said that he and Grant had committed the crimes using a "chopper," which is slang for a semi-automatic rifle. According to Green, Moon was the driver, Grant was the shooter, and the two disposed of the rifle after the shooting. Another witness testified that, shortly after the shooting, Moon had negotiated with her to buy an AK-47 rifle. Text messages of their communications were introduced in evidence.

Several reluctant witnesses testified about Grant and Moon's long friendship and Grant's animosity toward Allen. A witness testified that Grant was "out to get" Allen based on a belief that Allen had disrespected the memory of Grant's murdered brother, Michael. Allen was a close friend of Michael's when Michael was killed. Grant believed that Allen should have avenged Michael's murder and that his failure to do so was an insult. Allen often visited a store near where the shooting occurred and was known to drive a white Buick Riviera that looked like the one driven by Biancosino. A few days before the shooting, a witness saw Moon and Grant standing beside a silver Dodge Caliber parked near an apartment complex that Allen was known to frequent. A few days after the shooting, Allen sold his car.

The State also introduced evidence of Moon's prior felony convictions for aggravated assault. In 2005, Moon had fired an AK-47 into a car where three men were sitting. Moon's accomplice drove him to the scene of the shooting in a car that the accomplice's aunt had rented. Moon shot the men (all of whom survived their grievous injuries) because he was angry with them for implicating him in the theft of pit bull puppies.

1. Moon contends that the evidence, which he describes as "circumstantial at best," was insufficient to prove his guilt beyond a reasonable doubt and did not exclude every reasonable hypothesis save that of his guilt. Specifically, Moon argues that the evidence was insufficient to show that he participated in the murders or that he possessed or attempted to possess any firearms. We disagree.

The legal principles applicable to our review of this claim of error are well established.

When we consider the sufficiency of the evidence as a matter of federal due process, our review is limited to whether the trial evidence, when viewed in the light most favorable to the verdicts, is sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact. In addition, as a matter of Georgia statutory law, "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." OCGA § 24-14-6. Whether alternative hypotheses are reasonable, however, is usually a question for the jury, and this Court will not disturb the jury's finding unless it is insufficient as a matter of law.

(Citations and punctuation omitted.) Frazier v. State , 308 Ga. 450, 452-453 (2) (a), 841 S.E.2d 692 (2020). Further, "[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." OCGA § 16-2-20 (a).

To convict Moon of malice murder and possession of a firearm by a convicted felon during the commission of a crime, the State was not required to prove that Moon personally fired the shots that killed Pickels and Biancosino, only that he was a party to the crimes, which, in this case, meant that he intentionally aided or abetted in the commission of the crimes or intentionally advised, encouraged, or counseled Grant to commit the crimes. See OCGA § 16-2-20 (b) (3), (4) ; Bryant v. State , 296 Ga. 456, 458 (1), 769 S.E.2d 57 (2015) ("A person who does not directly commit a crime may be convicted upon proof that a crime was committed and that person was a party to it." (citation and punctuation omitted)). "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." (Citation and punctuation omitted.) Parks v. State , 304 Ga. 313, 315-316 (1) (a), 818 S.E.2d 502 (2018). See also Broxton v. State , 306 Ga. 127, 136 (4), 829 S.E.2d 333 (2019).

The evidence presented at trial supported the jury's rational finding, beyond a reasonable doubt, that Moon,...

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16 cases
  • Jones v. State
    • United States
    • Georgia Supreme Court
    • 22 Junio 2022
    ...which serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Moon v. State , 312 Ga. 31, 36-37 (2), 860 S.E.2d 519 (2021) (citation and punctuation omitted). "Both the need for investigation and the possibility of harmful error are height......
  • State v. Powell
    • United States
    • Georgia Supreme Court
    • 25 Octubre 2022
    ...clearly erroneous and the trial court's application of the law to undisputed facts is subject to de novo review[.]" Moon v. State , 312 Ga. 31, 57 (4), 860 S.E.2d 519 (2021) (citation and punctuation omitted). The trial court's order reflects that the trial court misapplied the law to be co......
  • Bethune v. Bethune
    • United States
    • Georgia Court of Appeals
    • 11 Marzo 2022
    ...without the evidence." OCGA § 24-4-401. "This is a binary question — evidence is either relevant or it is not." Moon v. State , 312 Ga. 31, 51 (3) (a), 860 S.E.2d 519 (2021) (citation and punctuation omitted). "In the context of discovery, courts should and ordinarily do interpret ‘relevant......
  • Hounkpatin v. State
    • United States
    • Georgia Supreme Court
    • 17 Mayo 2022
    ...the two-year gap between the offenses did not diminish the probative value of the other acts evidence. See Moon v. State , 312 Ga. 31, 55-56 (3) (d), 860 S.E.2d 519 (2021) (the seven-year gap between the prior crimes and the charged offenses "diminished somewhat" the probative value of the ......
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1 books & journal articles
  • Criminal Law
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 74-1, September 2022
    • Invalid date
    ...870, 860 S.E.2d 709 (2021).62. Id. at 870, 860 S.E.2d at 710.63. Id.64. Id. at 873, 860 S.E.2d at 712.65. Id. at 874, 860 S.E.2d at 712.66. 312 Ga. 31, 860 S.E.2d 519 (2021).67. Id. at 31, 860 S.E.2d at 524.68. Id. at 44, 860 S.E.2d at 532.69. Id. at 45, 860 S.E.2d at 533 (quoting Wallace v......

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