Outler v. State

• Decision Date: 29 April 2019
• Docket Number: S19A0158
• Citation: 305 Ga. 701,827 S.E.2d 659
• Parties: OUTLER v. The STATE.
• Court: Georgia Supreme Court

305 Ga. 701

827 S.E.2d 659

OUTLER

v.The STATE.

S19A0158

Supreme Court of Georgia.

Decided: April 29, 2019

David Joseph Walker, GEORGIA PUBLIC DEFENDER COUNCIL, APPELLATE DIVISION, 201 Second Street, Suite 550, Macon, Georgia 31201, for Appellant.

Samuel H. Altman, District Attorney, Kelly Anne Jenkins, A.D.A., Tony Allen May, A.D.A., MIDDLE JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, PO Box J, Swainsboro, Georgia 30401-0590, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

Blackwell, Justice.

Clifton Leandre Outler was tried by a Jefferson County jury and convicted of murder, aggravated assault, armed robbery, and three counts of possession of a firearm during the commission of a felony, all in connection with the fatal shooting of Anthony Holmes. Outler appeals, contending that the State failed to present evidence legally sufficient to sustain his convictions, that the trial court erred when it allowed a prosecuting attorney to question a witness in the presence of the jury after the witness invoked his constitutional privilege against self-incrimination, and that he was denied the effective assistance of counsel. Upon our review of the record and the briefs, we find no merit in these claims of error, but we note that the aggravated assault should have merged with the murder and that Outler should have been convicted on only one count of possession of a firearm during the commission of a felony. Accordingly, we vacate the convictions for aggravated assault and two counts of possession of a firearm during the commission of a felony, and we otherwise affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that Outler moved into Holmes’s house in Dublin around the end of April 2011. Outler was from Wadley (a city south of Louisville in Jefferson County), and he was the only connection that Holmes had to Wadley. Holmes told members of his family that he and Outler were lovers, and—during their brief relationship—Holmes bought clothing for Outler and sometimes allowed Outler to borrow his cell phone and drive his car.

On May 16, 2011, Holmes’s decomposing body was found near a creek behind an unoccupied log cabin in Wadley. He had been shot in the head and repeatedly beaten with a blunt instrument. The medical examiner testified that Holmes could have survived the gunshot wound

if he had received treatment but that a depression fracture to his skull, which was caused by the beating, would have been "devastating" and fatal.

Holmes had last been seen on the morning of May 11 in Dublin, and it appears that his and Outler’s relationship had soured in the days preceding his disappearance. On May 9 and 10, Holmes had been looking at apartments in Macon so that he could leave Dublin (and Outler), and he had around $ 6,000 in cash that he planned to deposit in a new checking account. Meanwhile, Outler was apparently borrowing Holmes’s car without permission, and on May 9, Outler provided his cousin Jeremy Reid with a check on Holmes’s (old) checking account and asked Reid to cash it for him (although Reid testified that he refused to do so). And Outler made several inquiries with acquaintances in Wadley about where he could obtain a gun. On the evening of May 10, a Dublin police officer conducted a traffic stop of Holmes’s vehicle as it pulled into Holmes’s driveway.

Outler was the sole occupant, and—after Outler exited the car—the officer observed that Outler had a RG-22 revolver in his pocket. Holmes came outside and told the officer that Outler was only supposed to be washing the car that day, not driving it. But Outler had run off behind the house, and the officer did not pursue him.

While Holmes’s activities after his May 10 conversation with the police officer are largely unknown, Outler was seen in numerous locations throughout Wadley on May 11. That afternoon, Outler and his brother Antoine Brown were picked up by Brown’s girlfriend, who was accompanied by her niece and her niece’s daughter. Outler directed the girlfriend to drive to the cabin by the creek where Holmes’s body was later found. Outler went behind the cabin for around ten minutes before returning (without explanation) to the girlfriend’s SUV. The girlfriend then drove Outler and Brown from Wadley to Swainsboro to do some shopping. On the way there, Outler and Brown were both "flashing" large amounts of cash, and Brown later told his girlfriend that he had $ 6,000.

On May 18, police officers conducted a search of the home of Outler and Brown’s mother, and they found clothes that had been soaked in bleach, two empty bottles of bleach, and several .22-caliber bullets in a drawer. Soon thereafter, Brown told police that Outler had asked for his help to "hit a lick" and later said that he had committed a robbery and had to "off" someone. Phone records established that Holmes’s phone was taken to Wadley on the morning of May 11 and to Swainsboro that afternoon, with numerous calls made from that phone to Outler’s friends and family, including 19 calls to Brown.

(a) Outler complains that the evidence presented at trial is insufficient to sustain his convictions because it was only circumstantial but failed to exclude every reasonable hypothesis other than his guilt. See OCGA § 24-14-6 ("[t]o 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"). But not every hypothesis is a reasonable one, and the evidence "need not exclude every conceivable inference or hypothesis—only those that are reasonable." Merritt v. State, 285 Ga. 778, 779 (1), 683 S.E.2d 855 (2009) (emphasis in original). Whether an alternative hypothesis raised by the defendant is "reasonable" is a question committed principally to the jury, "and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, we will not disturb that finding unless it is insupportable as a matter of law." Carter v. State, 276 Ga. 322, 323, 577 S.E.2d 787 (2003).

At trial, Outler argued that it was Brown who killed Holmes. But there was no evidence that Brown ever met Holmes or had even been to Dublin (where Holmes lived). And Holmes’s only connection to Wadley (where his body was found), was Outler, not Brown. In addition, within two weeks of moving in with Holmes, Outler asked at least two people about getting a firearm, was seen by a police officer with a firearm just before Holmes was killed, and was using Holmes’s car without permission and attempting to access funds in Holmes’s checking account. And it was Outler (not Brown) who directed Brown’s girlfriend to drive him to the murder scene, where his activities behind the cabin were never explained (except by Brown, who said that Outler told him that he had been having sex with a "lady" in the cabin and thought he had left something there). The jury was authorized to reject Outler’s hypothesis that Brown killed Holmes (especially without Outler’s participation). And the evidence was sufficient to authorize the jury to find Outler guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(b) Although the jury was authorized by the evidence to find Outler guilty of an aggravated assault upon Holmes with a firearm, the trial court erred when it failed to merge this aggravated assault with the murder. Merger generally is required when there is no deliberate interval between the non-fatal injury that forms the basis for aggravated assault (here, the shooting) and the fatal injury that forms the basis for the murder (here, the beating). See Alvelo v. State, 290 Ga. 609, 611-612 (2), 724 S.E.2d 377 (2012). In this case, there was no evidence at all of a deliberate interval between the shooting and the beating. Accordingly, the conviction and sentence for aggravated assault with a firearm must be vacated. See Battle v. State, ––– Ga. ––––, –––– (1) (c), 824 S.E.2d 335 (2019).

We also conclude that the trial court erred when it convicted and sentenced Outler on three counts of possession of a firearm during the commission of a felony. The indictment charged Outler with unlawfully possessing a firearm during the commission of...