Nicholson v. State
| Decision Date | 23 December 2019 |
| Docket Number | S19A0992,S19A1006 |
| Citation | 307 Ga. 466,837 S.E.2d 362 |
| Parties | NICHOLSON v. The STATE. Nichols v. The State. |
| Court | Georgia Supreme Court |
Michael Wayne Tarleton, Georgia Public Defender Council, 104 Marietta Street NW Suite 600, Atlanta, Georgia 30303, for Appellant in S19A0992.
Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Meghan Hobbs Hill, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Emily Kathleen Richardson, Lenny I. Krick, Sherry Boston, Dekalb County District Attorney’s Office, 556 North McDonough Street Suite 700, Decatur, Georgia 30030, for Appellee.
Genevieve Holmes, Georgia Public Defender Council, 104 Marietta Street NW Suite 600, Atlanta, Georgia 30303, for Appellant in S19A1006.
Appellants Marques Nicholson and Ramon Nichols were tried together and convicted of malice murder and other crimes in connection with the gang-related shooting death of Derrick Linkhorn. On appeal, both of the appellants contend that the evidence presented at their trial was insufficient to support their convictions and that the trial court abused its discretion by denying their motions to sever their cases for trial. Nicholson also contends that the trial court erred by admitting certain cell phone records, and Nichols also contends that the court erred by admitting certain social media records. After review of the record and the briefs, we see no error, so we affirm.1
1. Viewed in the light most favorable to the verdicts, the evidence presented at the joint trial showed the following. Nicholson, Nichols, and Rahsin Narcisse were members of the 92 Inglewood Family "set" of the Bloods criminal street gang. Nichols was the highest ranking gang member of those involved in the crimes charged. Nicholson and Narcisse ranked just below Nichols. Antarious Johnson, Malcolm Wilson, and Marcus Estes, along with Linkhorn, were members of a lower ranking subgroup of the 92 Inglewood Family; they were in the process of becoming full members of the set. Nicholson and Nichols had been associated with the Bloods since at least 2009, when they were arrested for spraying a fence with Bloods-related graffiti.
As part of the initiation process, the lower ranking members met with higher ranking members, known as "Big Homies," who had the power to make certain decisions in the gang and to direct lower ranking members. Lower ranking members often received directions from the "Big Homies" through phone conversations and text messages. Nichols regularly contacted Wilson, who would relay information to the other lower ranking members.
In early March 2012, Linkhorn’s friend Andre Alexander told a number of people that he was associated with 135 Piru, another set of the Bloods. Alexander was not actually associated with 135 Piru, which angered Linkhorn’s fellow gang members, who planned to attack Alexander for "false claiming." When Linkhorn found out that his associates planned to attack Alexander at Alexander’s high school, he warned Alexander, who then left the school.
Nicholson, Nichols, Narcisse, and the lower ranking gang members later learned that Linkhorn had warned Alexander about the planned attack, and they viewed the warning as an act of disloyalty to the gang that required discipline. On the evening of March 7, Nichols, using his nickname "Smurf," sent Wilson a series of text messages related to shooting and killing Linkhorn, including "Tell [Linkhorn] to come thr[ough] so I [c]an pop him," and "I want dar[k] fade wit[h] [Linkhorn] bl[oo]d[.]"2 Several minutes later, "Smurf" sent a message saying, ".... y[’]all fallback on [th]at 135 s**t, we gotta take care of [Linkhorn] first[.]"3
Wilson and Estes, who were charged separately, gave proffers to the State describing the subsequent events leading to Linkhorn’s murder; they both later pled guilty and testified at the appellants’ trial.4 According to Wilson, the decision to kill Linkhorn had been discussed throughout the week leading up to the murder, and it was affirmed in a conference call between Nichols, Narcisse, Wilson, and Johnson on the night of March 7. The next morning, Wilson, Johnson, and Estes met up with Nicholson and Narcisse, and the five of them then went looking for Linkhorn. They first looked for Linkhorn at school, then at his home, and then waited in his neighborhood. When they did not find Linkhorn, they went to an apartment complex near the Kensington MARTA station. A police officer later told them to leave the area. They then went to a nearby library to continue waiting for Linkhorn. Throughout the day, Johnson communicated with Linkhorn by phone, telling him to meet with the group at the Kensington MARTA station. The group then returned to the MARTA station; Johnson and Wilson waited for Linkhorn while Nicholson, Narcisse, and Estes went ahead to the Southern Pines apartment complex across the street. After Linkhorn arrived at the station, Narcisse instructed Johnson and Wilson by text message to bring Linkhorn to an abandoned apartment at the complex where Nicholson, Narcisse, and Estes were waiting. When everyone was inside the apartment, Wilson, Johnson, and Estes were told to fight Linkhorn; they began beating and kicking him as Narcisse stood by with a gun and Nicholson stood beside Narcisse. Narcisse then asked, "Who wants to do it?" before giving the gun to Johnson, who forced Linkhorn onto his knees and then shot him. Wilson and Estes were told to run, and they ran out of the apartment. As they left, Wilson heard another shot. Johnson then came out of the apartment and left the complex with Wilson and Estes.
According to Estes, on the morning of the murder, he, Johnson, and Wilson met up with two "Big Homies," and the five of them searched for Linkhorn, first at Linkhorn’s house, then in his neighborhood, and then at an apartment complex near the Kensington MARTA station where they were stopped and questioned by a police officer. Throughout the day, Johnson communicated with Linkhorn by phone and by text message, trying to coax him into meeting with the group. Before Linkhorn arrived at the Kensington MARTA station, the two "Big Homies" began walking ahead to an apartment complex in the area, and Wilson told Estes to follow them. Estes tried, but he could not catch up with the "Big Homies," so he waited at the front of the apartment complex until Johnson, Wilson, and Linkhorn arrived. The four of them met up with the "Big Homies" outside the abandoned apartment, and they all went inside. One of the "Big Homies" guarded the door while the other stood by with a gun. The armed "Big Homie" questioned Linkhorn and said "green light" before Johnson, Wilson, and Estes began punching and kicking Linkhorn. The "Big Homie" guarding the door then pushed Linkhorn into the middle of the apartment. The armed "Big Homie" then made Linkhorn get on his knees, asked "Who wants to get him?," gave the gun to Johnson, and told Wilson and Estes to leave once Johnson had shot Linkhorn. Johnson then shot Linkhorn, and Wilson and Estes ran out of the apartment. Wilson and Estes then returned to the MARTA station and waited for Johnson. In separate photo lineups, Estes identified each of the two "Big Homies" that were involved in Linkhorn’s murder; those lineups were admitted into evidence at trial, and as discussed in Division 2 below, the jury could determine that the "Big Homie" who guarded the door was Nicholson and the armed "Big Homie" was Narcisse.
Cell phone records confirmed that Johnson coaxed Linkhorn into meeting with the group at the Kensington MARTA station by telling Linkhorn that Nichols had given Johnson the money that Linkhorn needed to bail a friend out of jail. The records also confirmed that Narcisse instructed Johnson by text message to bring Linkhorn to the abandoned apartment. Surveillance video from the Kensington MARTA station showed Linkhorn leaving with Johnson and Wilson around 3:57 p.m., and Johnson and Wilson returning with Estes about half an hour later; when they returned, Wilson was wearing Linkhorn’s hat.
The day after the murder, Wilson sent a text message to Nichols saying, "Can’t you tell that I’m serious now?" Nichols replied that he would take care of Wilson and guide him through the process of becoming a full-fledged member of the 92 Inglewood Family. Several days later, Wilson sent a text message to Johnson telling him that their status within the gang had increased. The same week, Johnson asked Nichols several questions by text about the meaning of certain Bloods terminology and the gang’s rank structure. Nichols answered Johnson’s questions and told him that he would become a full member of the 92 Inglewood Family in April.
When Linkhorn’s family realized that he was missing, a search party was formed to look for him. At some point, Johnson joined the search party, and Nicholson sent a text message to Wilson asking if he was participating. About a week after the murder, Johnson responded to a social media post by Linkhorn’s sister that asked for information about Linkhorn. Based on information that Johnson gave her, Linkhorn’s sister drove to the Southern Pines complex to look for Linkhorn. Although she did not find his body, she relayed the information to the police. The police then spoke with Johnson, and he led them to Southern Pines, where they found Linkhorn’s body. They also found two cartridge casings on the floor and recovered a red bandana from Linkhorn’s body. The police then searched Johnson’s home, where they found a red jacket, a red bandana, and a plastic bag filled with cocaine. The police also searched Wilson’s home, where they found a red bandana, a red checkered shirt, and a dresser with carvings and graffiti symbolic of the Bloods gang.
The week before the appellants’ trial, Estes reviewed his proffer and the identifications that he had made from the photo lineups, and he confirmed that they were accurate. The day before trial, Estes was...
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