Peoples v. State

• Citation: 757 S.E.2d 646,295 Ga. 44
• Decision Date: 10 April 2014
• Docket Number: No. S13A1893.,S13A1893.
• Court: Georgia Supreme Court
• Parties: PEOPLES v. The STATE.

295 Ga. 44

757 S.E.2d 646

PEOPLES

v.The STATE.

No. S13A1893.

Supreme Court of Georgia.

April 10, 2014.

Joseph Scott Key, McDonough, for appellant.

Patricia B. Attaway Burton, Dep. Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Atlanta, Emily K. Richardson, James Alan Dooley, Asst. Dist. Attys., James David McDade, Dist. Atty., Douglasville, for appellee.

NAHMIAS, Justice.

Appellant Kevin Peoples was convicted of felony murder and several other crimes in connection with a home invasion that resulted in the shooting death of J.R. Morrow. On appeal, he contends that: (1) the evidence at trial was insufficient to support his conviction for the kidnapping with bodily injury of Morrow's father; (2) the trial court erred by admitting hearsay statements made by a co-conspirator before the conspiracy was formed; (3) the court erred by admitting evidence of a prior bad act by Appellant; (4) the court erred by allowing the prosecutor to refer to jurors by name and to make an inappropriate demonstration during closing arguments; and (5) Appellant's trial counsel provided ineffective assistance by not objecting to portions of the prosecutor's closing arguments. We conclude that the trial court erred in admitting the prior act evidence, but we also conclude that this error was harmless; Appellant's other enumerations of error lack merit. Accordingly, we affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence presented at trial showed the following.

(a) Background. In October of 2002, 20–year–old J.R. Morrow (“J.R.”) was living with his father, James Morrow (“Mr. Morrow”), and his father's girlfriend, Judy McClure, at Ms. McClure's house in Douglas County. J.R., who was unemployed, spent almost every day with his cousin, Drew Collins, who was about the same age and also unemployed. Co-indictee Justin Brown, a friend of J.R., spent the five days before the home invasion with J.R. and Collins; Brown was with them on October 12, when Mr. Morrow took $1,000 in cash out of a gun safe at the house and gave it to J.R. to help buy a car that afternoon.

On the evening of the following day, October 13, Collins was with J.R. and Brown at a Walmart, where he met Appellant and his younger brother, co-indictee Byron Peoples (“Byron”), after Brown called Appellant and asked him to come there. On October 14, Brown told Collins that he was thinking about making some money by committing a robbery. According to Collins, Brown was always talking about robbing people if he could get a gun, but on this occasion, Brown said he was thinking about robbing Mr. Morrow. Brown explained that Mr. Morrow had about $10,000 in the safe at the McClure house and that if he could get a gun, he would get some friends, including Appellant and Appellant's brother, to come with him to the McClure house late at night and rob Mr. Morrow. At that point, Collins informed Brown that J.R. was his cousin, and Brown stopped talking about his plan.

The next morning—October 15—J.R. dropped Brown off at the home of Brown's friend, co-indictee Giovanni Little, who lived nearby. According to Little, Brown told Little about the money in the safe and said that he wanted to steal it. Brown instructed Little to call Appellant, who also lived nearby and who, unlike Brown and Little, had his own car—a small black Toyota Corolla. Little called Appellant, and Brown and Appellant spoke on the phone. That evening, Appellant drove with Byron to Little's house and picked up Little and Brown. The plan was for Appellant and Little to get into the McClure house and keep everyone in one room so that Brown could slip in and steal the money without being recognized.

(b) The Crimes. Around 9:00 p.m., Byron drove Appellant, Brown, and Little past the McClure house to a gas station three driveways up the street, where Brown used a payphone to call the house at 9:11 p.m. Mr. Morrow answered, and when Brown asked if J.R. was there, Mr. Morrow said no. In reality, J.R. was downstairs sleeping in his room, but Mr. Morrow knew that J.R. wanted to get some rest, and he did not want Brown to come back over. Brown hung up and then walked with Appellant and Little down the street to the house while Byron drove to a parking lot across the street from the house and waited.

Appellant and Little climbed the stairs to the front door while Brown hid off to the side. Inside the house, Mr. Morrow was watching television, and Ms. McClure was getting ready for bed. Mr. Morrow heard a noise on the front porch and thought the wind had blown open the storm door, so he went to the front door and turned on the porch light. As he started to open the door, he saw that Appellant and Little were leaning against it, and he put his foot on the door to keep it from opening further. One of the men asked if “John” was there, but Mr. Morrow got out only a few words in response before one of the men reached inside with a gun and shot Mr. Morrow in the shoulder. Appellant and Little pushed their way inside as Mr. Morrow fell to the floor and was shot a second time in the leg.

Hearing the commotion, Ms. McClure left her bedroom and started to come down the hall, but she stopped when a man shot at her—she fortunately was not hit—and ordered her back into the bedroom; she complied. Mr. Morrow was then forced at gunpoint down the hallway and into the bathroom. Mr. Morrow opened the bathroom door several times but retreated when the gunman told him to shut the door. From the bathroom, Mr. Morrow heard running through the house, a gunshot from the direction of the basement stairs, and someone saying, “I found him, I found him,” followed by more running as Appellant, Little, and Brown left the house to flee the scene in the getaway car that Byron had waiting across the street.

After the intruders left, Mr. Morrow and Ms. McClure ran to the basement, where they found J.R. lying face up in the doorway of his bedroom with a single gunshot wound to the chest. He was dead.

As they drove away from the house, Appellant told Little that he had tried to scare the people in the house, and not to tell anyone what had happened. Byron dropped Little and Brown off at Little's home and then drove home with his brother. At 9:38 p.m., Appellant placed a call from his cell phone to the Little residence. At 10:34 p.m., Appellant called Lauren Lee, his girlfriend and the mother of his infant daughter; he told Lee that if anyone asked, she should say he had been with her all night. At 10:38 p.m., Brown made a similar call to his girlfriend, Meggie Brookshire. Both women agreed to provide the alibis.

(c) The Investigation. Officers from the Douglas County Sheriff's Office interviewed Mr. Morrow at the hospital. He told them about the telephone call from Brown just before the home invasion and gave physical descriptions of the two men that he saw on his front porch that matched Appellant and Little. When Collins arrived at the hospital, he told the officers what Brown had said about wanting to rob Mr. Morrow and getting Appellant to help him; Collins knew Appellant only by his first name, but he had met Appellant at the Walmart two days before the crimes. Collins also gave the officers a description of Little, said that it was likely that Little was involved if Brown was, and rode with the officers to point out Little's house.

About six hours after the crimes—around 3:00 or 3:30 a.m. on October 16—officers went to Little's house, telling him that they needed information to help locate Brown. Little told the officers about Brown's call to the McClure house the prior evening, but he lied and said that Brown made that call from Little's house. Little also claimed that he had been with his girlfriend Tabitha Wheeler all night. As soon as the officers left, Little called Wheeler and asked her to say that he was with her all night if anyone asked, and she agreed to do so. Shortly thereafter, the sheriff's office learned that Little had an outstanding warrant from another jurisdiction, and officers were sent back to Little's house to arrest him.

Meanwhile, officers were headed to Wheeler's residence to confirm Little's alibi. When Wheeler first spoke to the officers around 4:00 or 4:30 a.m., she said that Little had been with her at her home that night from 8:30 to 9:30 p.m. Later that morning, however, she went to the sheriff's office to give a statement and was told that a man had been killed in a robbery the night before. Wheeler then admitted that she had lied to the officers earlier, said that Little had asked her to lie for him, and explained that Little had stopped by her place earlier the day before but was not there between 8:30 and 9:30 p.m. After the officers told Little that Wheeler had refused to alibi him, he began to tell them more about what actually happened, including that Appellant and Byron were involved in addition to himself and Brown.

That afternoon, officers located Brown and arrested him in connection with the murder. Brown initially said that he had been with his girlfriend at the time of the home invasion. However, the officers had already contacted her, and she told them that Brown was with her during the day but that she had dropped him off at Little's place around 8:00 p.m. She also said that Brown had called her later that night to ask her to falsely alibi him.

Earlier that afternoon, Appellant called his girlfriend Lee and asked her to pick his brother up from work and take him to her house in Powder Springs, which was about 20 minutes from the house where Appellant and his brother lived with their parents. Lee had never picked Byron up from work before, but she did as Appellant asked. Later that day, Byron was outside talking on the phone to Appellant when Lee overheard him say something about “snitching.” Appellant and his brother spent the night at Lee's house that night, even though there was no electricity there at the time. That was the first and...