Moon v. the State.Martin v. the State (two Cases).

• Decision Date: 07 February 2011
• Docket Number: Nos. S10A1668,S10A1671,S10A1672.,s. S10A1668
• Citation: 705 S.E.2d 649,288 Ga. 508
• Parties: MOONv.The STATE.Martinv.The State (Two Cases).
• Court: Georgia Supreme Court

288 Ga. 508

705 S.E.2d 649

11 FCDR 224

MOON

v.The STATE.Martin

v.The State (Two Cases).

Nos. S10A1668

S10A1671

S10A1672.

Supreme Court of Georgia.

Feb. 7, 2011.

Nathanael A. Horsley, Dawsonville, for Moon.Cook, Noell, Tolley & Bates, Edward D. Tolley, Ronald E. Houser, Athens, for Martin.Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Christopher R. Johnson, Assistant Attorney General, for appellee.CARLEY, Presiding Justice.

In a joint trial, a jury found Appellants Clifton Dean Moon and Bobby Leon Martin guilty of felony murder during the commission of criminal attempt to commit armed robbery, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime, but not guilty of malice murder and possession of a handgun during the commission of malice murder. The trial court entered judgments of conviction on the guilty verdicts and sentenced both Appellants to life imprisonment for the felony murder charge, a consecutive five-year term for the charge of possession of a firearm by a convicted felon, and a consecutive five-year term for the charge of possession of a firearm during the commission of a crime. Appellants appeal after the denial of separate motions for new trial.^*

1. Construed most strongly in support of the verdicts, the evidence shows that, on January 4, 2006, Martin and Torena Johnson, who was driving her Jeep Cherokee, picked up Moon at an apartment complex. Moon was wearing a red shirt and carrying a black tote bag. The three drove to an apartment owned by Kentora Latruan Thomas, a drug dealer, so that Ms. Johnson could buy marijuana. On the way there, Moon stated that Thomas “was sweet,” which is slang for a potential robbery target, and that “we can get him.” After leaving Martin and Moon in the Jeep, Ms. Johnson went to Thomas' apartment and purchased marijuana from Thomas. Also in Thomas' apartment at this time were Lenika Mattox and Thomas' cousin Pedro. As Ms. Johnson was about to leave, there were two knocks at the door and she opened the door. Two masked gunmen entered the apartment and told Thomas to “give it up.” According to Ms. Mattox and Pedro, one of the gunmen was wearing a red shirt. Ms. Mattox testified that Ms. Johnson then hit one of the gunmen yelling, “No, y'all, don't do it like that, we weren't supposed to do it like that, ya'll.” As Thomas tried to force the two gunmen out of his apartment, he was shot three times. He ultimately died in the hallway.

Several other people heard the gunshots and came out to investigate, where they saw two men fleeing the scene, one of whom was wearing a red shirt. They were seen getting into a light-colored Jeep. As Ms. Johnson was leaving Thomas' apartment, she turned to Ms. Mattox and stated that “it wasn't supposed to happen like that.” Ms. Johnson then left. Shortly after this, at Ms. Johnson's apartment in front of her, Martin, Martin's sister Maria Fair, and Josh Jackson, Moon admitted that “he shot dude.” Jackson testified that, in response to a question from Ms. Johnson as to why Moon shot Thomas, Moon replied that he did not have any choice because Thomas “bucked.”

Following the murder and in exchange for a plea deal, Ms. Johnson assisted the police in recording incriminating telephone conversations with Martin. The police arrested Martin on January 7, 2006, and, in the course of a search of his residence, the police recovered a Taurus 9mm handgun inside a paper bag located in a bathroom trash can. A projectile recovered during the autopsy as well as a shell casing from the crime scene matched the handgun. The evidence was sufficient for a rational trier of fact to find Appellants guilty beyond a reasonable doubt of the crimes for which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Case Number S10A1668

2. Moon contends that the trial court erred in denying his motion to sever his trial from that of his co-defendant Martin. He claims that there was more direct evidence against Martin, including similar transaction evidence, that raised the probability of spillover evidence, and that the defenses of the two codefendants were antagonistic.

In a murder case where the death penalty is not sought, the trial court has broad discretion to grant or deny a motion for severance. [Cits.] In ruling on a severance motion, the trial court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses. [Cit.] It is not enough for the defendant to show that he or she would have a better chance of acquittal at a separate trial or that the evidence against a codefendant is stronger. [Cits.] Rather, the defendant must show clearly that a joint trial will prejudice his or her defense, resulting in a denial of due process. [Cit.]

Krause v. State, 286 Ga. 745, 749(5), 691 S.E.2d 211 (2010). In the present case, there was no likelihood of confusion by the jury as to the evidence and the law because there were only two defendants “who were jointly indicted for the same offenses, which involved the same witnesses, and the evidence indicated that they acted in concert. [Cit.]” Oliver v. State, 253 Ga. 284(2), 319 S.E.2d 856 (1984). Moreover, the danger of spillover evidence was minimal because the bulk of the evidence equally implicated both defendants as the two gunmen. The sole evidence relied on by Moon as implicating only Martin was the telephone calls overheard by the police between Ms. Johnson and Martin as well as the handgun recovered by the police upon Martin's arrest. However, Martin's statements recorded in these phone calls would have been admissible against Moon in a separate trial as statements of a co-conspirator. OCGA § 24–3–5; Styles v. State, 279 Ga. 134, 136(2), 610 S.E.2d 23 (2005). Moreover, there was ample evidence incriminating Moon, including numerous eyewitnesses who described one of the fleeing gunmen as wearing the same clothes that Moon wore on the day of the crime and witness testimony of statements made by Moon admitting that he shot the victim. With respect to the similar transaction evidence admitted against Martin, the trial court properly instructed the jury on its consideration, telling the jury that it did not apply to Moon. Furthermore, “ ‘[t]he mere fact that the case against (one) [defendant] was stronger than the case against (the other) [does] not necessitate a separate trial.’ [Cit.]” Oliver v. State, supra at 285(2), 319 S.E.2d 856. Finally, Moon's claim that the defenses of the co-defendants were antagonistic is belied by the record.

Both defendants denied being present at the crime scene and neither attempted to point the blame at the other. They simply argued that the prosecution had failed to meet its burden of proof. Moreover, “unless there is a showing of resulting prejudice, antagonistic defenses do not automatically require a severance. [Cits.]” Green v. State, 274 Ga. 686, 688(2), 558 S.E.2d 707 (2002). Since Moon has failed to make a showing of prejudice, the trial court did not abuse its discretion in denying severance. See Burgess v. State, 276 Ga. 185, 188(4), 576 S.E.2d 863 (2003).

3. Moon next contends that the trial court improperly limited his cross-examination of Ms. Fair and Investigator Saulters. Moon sought to question both witnesses concerning a previous home invasion robbery that Martin and Ms. Fair were suspected of committing, which was allegedly similar to the crime at issue in the present trial.

“Although the appellant is entitled to a thorough and sifting cross-examination of a witness, the scope of such cross-examination is within the sound discretion of the trial court. [Cits.]” White v. State, 253 Ga. 106, 110(4), 317 S.E.2d 196 (1984). “A trial court does not abuse its discretion in preventing questions ... that could confuse or mislead the jury. [Cits.]” Davis v. State, 304 Ga.App. 355, 363(5), 696 S.E.2d 381 (2010). The questioning of Ms. Fair and Investigator Saulters concerning the previous home invasion robbery was irrelevant to the present case and would have led to jury confusion. There was never enough evidence to file charges against Martin for that previous crime. Presumably, if there had been enough evidence, the prosecution would have sought to introduce it as a similar transaction. Even if this evidence had been allowed in, it would not have exculpated Moon as there were two masked gunmen. Moreover, the trial court did allow Moon limited questioning as to the prior crime during his cross-examination of Investigator Saulters. From a review of the record, it appears that Moon was able to elicit testimony concerning the similar aspects of the prior crime and the present crime and also why the investigator mentioned the prior crime in a pre-trial interview with Ms. Fair. Therefore, the trial court did not abuse its discretion in limiting the scope of cross-examination as to the earlier home invasion.

4. Moon contends that the trial court erred by allowing the prosecution to elicit testimony from Investigator Quinton Ward regarding a prior consistent statement made by Herbert Brown, Martin's cellmate, during a pre-trial interview. Moon argues that the investigator's testimony improperly bolstered the credibility of Brown's statements. “ ‘[A] witness's veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.’ [Cits.]” Baugh v. State, 276 Ga. 736, 738(2), 585 S.E.2d 616 (2003). According to the record, on cross-examination, Martin's counsel questioned Brown about the federal drug charges pending against him and...