Rosser v. State

• Decision Date: 04 May 2020
• Docket Number: S20A0103
• Citation: 308 Ga. 597,842 S.E.2d 821
• Parties: ROSSER v. The STATE.
• Court: Georgia Supreme Court

308 Ga. 597

842 S.E.2d 821

ROSSER

v.The STATE.

S20A0103

Supreme Court of Georgia.

Decided: May 4, 2020

Stanley W. Schoolcraft, III, for Appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Assistant District Attorney, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Matthew David O'Brien, Assistant Attorney General, for Appellee.

Bethel, Justice.

A Fulton County jury found Larry Rosser guilty of malice murder and other offenses in connection with the death of Alexis Vereen.¹ Rosser appeals, arguing that the evidence presented against him by the State was insufficient to support the jury's verdicts, that the trial court erred by not granting his motion for mistrial, that the trial court erred by allowing the State to introduce a portion of Rosser's custodial statement to law enforcement, and that his trial counsel provided ineffective assistance. Finding no error, we affirm.

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. In 2010, Rosser and Vereen were in a romantic relationship, and they had a child together in June of that year. On August 27, 2010, Rosser and Vereen got into an argument at Rosser's parents’ house. In the course of the argument, Rosser hit Vereen, bruising and cutting her face and nose.² Rosser also damaged a stroller and broke Vereen's cell phone. Vereen sought a restraining order against Rosser, cut off contact with him, and moved in with her parents. Rosser later pled guilty to misdemeanor battery in connection with this incident.

Sometime later, Vereen resumed contact with Rosser, and the two resumed their romantic relationship. On June 25, 2012, Rosser had a party at his mother's house, which Vereen, her friend Mariah Jacobs, and Rosser's friend Aaron Jackson attended. Rosser drank some alcohol at the party, and later that evening, Rosser, Vereen, Jacobs, and Jackson rode to the Days Inn on Fulton Industrial Boulevard, where Jackson rented a room. Rosser continued to drink in the hotel room and began "talking crazy." Rosser then pulled out a black semiautomatic .380 Hi-Point handgun. When Vereen and Jacobs attempted to leave the room, Rosser "wrestled" Vereen back inside. Vereen and Jacobs eventually left the room, however, and left the Days Inn. Vereen told Jacobs that Rosser was jealous about someone Vereen used to date.

Rosser and Jackson followed the women outside the Days Inn, where Rosser and Vereen ended up "wrestling" over the handgun. Jacobs left and went to the Airway Motel across the intersection of Old Gordon Road and Fulton Industrial Boulevard from the Days Inn. After she left, Jacobs received a phone call from Vereen, who told her that Rosser was "rubbing" the gun against her head and saying that he would kill her. Jacobs told Vereen to call her mother. While Jacobs remained outside the Airway Motel, she saw Vereen across the street, attempting to run away from Rosser. Rosser, however, caught up to Vereen. Jacobs then retreated behind the Airway Motel out of fear for her own safety. Jacobs heard Vereen scream and then heard a gunshot. The next morning, Jacobs called Jackson at the Days Inn. Rosser and Vereen had never returned to the motel room. Jacobs tried to call Vereen's cell phone several times, but no one answered.

Later that evening, a passing motorist saw a woman, later identified as Vereen, lying on a sidewalk in front of a business near the intersection of Old Gordon Road and Fulton Industrial Boulevard. Vereen's face was covered in blood, and she was lying in a pool of blood. The motorist called 911, and a patrol officer from the Fulton County Police Department responded to the call. Detective David Coleman of the Atlanta Police Department also came to the scene of the shooting. Police collected a shell casing near Vereen's body that was later identified as a .380 cartridge. Vereen was transported to a local hospital to be treated for a gunshot wound to the head.

On June 26, Jacobs met with Detective Coleman and provided a statement to him. In her interview, she identified Rosser in a photo lineup.

On June 27, Vereen died in the hospital as a result of the gunshot wound. Later that day, Detective Coleman obtained a warrant for Rosser's arrest on murder charges. Rosser turned himself in to police on June 29 so that he could "talk about what happened" to Vereen. Rosser was placed under arrest, handcuffed, and then transported to the Atlanta Police Department homicide office. Detective Coleman gave Rosser Miranda warnings,³ and Rosser then agreed to speak with him. In that interview, which Coleman recorded with an audio recorder, Rosser told Coleman that his sister had advised him that he should come to the police and tell his side of the story. Rosser initially blamed Jackson for Vereen's death. Rosser stated that Jackson was his partner in dealing drugs and that the two got into an altercation over their drug business that night outside the Days Inn. Rosser claimed that Jackson took possession of Rosser's pistol, a .380 Hi-Point, and fired at Rosser as he fled. Rosser claimed that Jackson's shot missed him and hit Vereen.

After Detective Coleman challenged this version of the events, Rosser said he did not remember much about what happened the night of the incident due to his consumption of alcohol. Rosser later asked Coleman if he could erase the recording of the interview so that he could tell "the whole thing." Coleman declined, and Rosser told Coleman that he chased Vereen out of the hotel room and that they were arguing in the parking lot. Rosser then apologized to Detective Coleman for lying earlier in the interview.

In five separate enumerations of error, Rosser challenges the sufficiency of the evidence supporting the jury's verdicts as to Counts 1-5 (malice murder, two counts of felony murder, aggravated assault, and possession of a firearm during the commission of a felony). Rosser's claims regarding the evidence supporting the felony murder counts and the aggravated assault count are moot, as those counts were either vacated by operation of law or merged for sentencing. See Mills v. State , 287 Ga. 828, 830 (2), 700 S.E.2d 544 (2010) ; Lupoe v. State , 284 Ga. 576, 577 (1) n.2, 669 S.E.2d 133 (2008). Likewise, although Rosser has not challenged the sufficiency of the evidence as to Count 6 (possession of a firearm by a first offender probationer), any claim Rosser has regarding the sufficiency of the evidence as to that count is also moot, as the trial court purported to merge that count into Count 3 and therefore did not sentence him as to Count 6. Thus, our review of the evidence is limited to the two counts for which Rosser was sentenced: malice murder and possession of a firearm during the commission of a felony.

As to these two counts, Rosser raises the same arguments regarding the sufficiency of the evidence presented. First, citing this Court's decision in Cuyuch v. State , 284 Ga. 290, 667 S.E.2d 85 (2008), Rosser argues that the evidence presented against him was insufficient because, as he contends in a different enumeration (see Division 3, below), the statement he gave to Officer Coleman should not have been admitted at trial. Rosser also argues that the evidence presented against him was insufficient because it was entirely circumstantial and did not exclude every other reasonable hypothesis other than his guilt. He specifically argues that the evidence did not exclude the hypothesis that Jackson was the person who shot Vereen.

When evaluating the sufficiency of evidence as a matter of federal due process under the Fourteenth Amendment of the United States Constitution, the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Court views the evidence in the "light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." (Citation and punctuation omitted.) Hayes v. State , 292 Ga. 506, 506, 739 S.E.2d 313 (2013). The jury's resolution of these issues "adversely to the defendant does not render the evidence insufficient." (Citation and punctuation omitted.) Graham v. State , 301 Ga. 675, 677 (1), 804 S.E.2d 113 (2017). Further, as a matter of Georgia statutory law, "[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." 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. See Graves v. State , 306 Ga. 485, 487 (1), 831 S.E.2d 747 (2019).

As to Rosser's first contention, "it is well established that in determining the legal sufficiency of the evidence, this Court considers all of the evidence admitted, including evidence a party claims was erroneously admitted." (Citations and punctuation omitted.) Glenn v. State , 306 Ga. 550, 553 (2) n.3, 832 S.E.2d 433 (2019).⁴ Thus, regardless of whether Rosser's inculpatory statements to Detective Coleman were properly admitted, those statements are considered when evaluating the sufficiency of the evidence presented against Rosser.

Rosser also argues that the evidence did not exclude all reasonable hypotheses other than his guilt. He notes that there were no eyewitnesses to Vereen's shooting and that the State's key witness, Jacobs, admitted that she only heard gunshots and did not see who shot Vereen. Rosser also notes that Jacobs’ testimony established that Jackson was with Vereen and Rosser in the middle of the road when the struggle for the gun began. Rosser argues that this testimony...