Shepard v. State

• Decision Date: 21 November 2016
• Docket Number: S16A0884
• Citation: 300 Ga. 167,794 S.E.2d 121
• Parties: Shepard v. The State.
• Court: Georgia Supreme Court

300 Ga. 167

794 S.E.2d 121

Shepard

v.The State.

S16A0884

Supreme Court of Georgia.

Decided November 21, 2016

David Glenn Williams, Jr., David Ross Phillips, Walton County Public Defender's Office, 203 Milledge Ave, Monroe, Georgia 30655, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Mary Catherine Greaber, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Kenneth W. Mauldin, District Attorney, Brian Vance Patterson, Chief A.D.A., Western Judicial Circuit District Attorney's Office, 325 East Washington Street, Room 370, Athens, Georgia 30601, for Appellee.

Blackwell, Justice.

Rodney Gordon Shepard was tried by a Clarke County jury and convicted of murder and the unlawful possession of a firearm during the commission of a crime, both in connection with the fatal shooting of David Lumpkin. Following the denial of his motion for new trial, Shepard appeals, contending that the evidence is insufficient to sustain his convictions, that the trial court erred when it denied his motion to suppress a statement that he gave to law enforcement officers, that the trial court erred when it charged the jury, and that he was denied the effective assistance of counsel. Upon our review of the record and briefs, we see no error, and we affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that Shepard, Eric Hassel, and Terrence White were friends. On November 13, 2006, Lumpkin and another man robbed White, and White wanted revenge. White subsequently gave a gun to Shepard, which Shepard gave to Hassel. Early on the morning of November 18, Shepard and Hassel went to a house in Athens, where Lumpkin was sleeping, and where Shepard intended to lure Lumpkin outside by offering to purchase cocaine from him. Timothy Bradford let Shepard and Hassel into the house, and after awhile, the three men walked onto the porch, where they talked. Bradford eventually went back inside, leaving the door open. About two minutes later, a hooded man came through the door and fired multiple gunshots at Lumpkin, who still was asleep. Lumpkin was wounded by three shots, including one to his abdomen, which proved fatal. After shots were fired, Shepard and Hassel ran from the house to a nearby apartment, where their friend, Binika Hankton, lived. After Hankton let them into the apartment, Hassel gave a gun to Shepard, and they left through the back door.

Shepard went to New Orleans, but he later spoke by telephone with Hankton. Their conversations were recorded by investigators. In those conversations, Shepard said that he would have people call a police tip hotline to confuse the police investigation, that he had hidden the gun in a particular location, and that White had paid him in cash and cocaine and had agreed to help Hankton as needed. Other evidence showed that White and a friend had, in fact, contributed money toward Hankton's rent, that investigators found a gun in the area that Shepard described, and that forensic testing confirmed that two bullets recovered from Lumpkin's body (as well as other bullets found at the crime scene) had been fired from that gun.

Shepard was arrested in New Orleans, and when he was interviewed by detectives, he denied the shooting and said that he was paid $20,000 to stay quiet. He made a number of other incriminating statements, however, that were consistent with other evidence presented at trial. And when Shepard was returned to Georgia and held in the same jail as Hassel, Shepard tried to pass notes to Hassel in which Shepard attempted to confirm that they were telling the same story.

Disputing the sufficiency of the evidence, Shepard points to evidence suggesting that Hassel, not Shepard, fired the fatal shot. The State was not required, however, "to prove that [Shepard] himself fired the fatal shot, so long as it proved that he was a party to the fatal shooting." Pyatt v. State, 298 Ga. 742, 745 (1), 784 S.E.2d 759 (2016) (citing OCGA § 16-2-20, which defines parties to a crime). To prove that Shepard was a party to the fatal shooting, the State had to prove that Shepard and the shooter shared a common criminal intent, and as we have explained, "such shared criminal intent may be inferred from the person's conduct before, during, and after the crime." Grant v. State, 298 Ga. 835, 837 (1), 785 S.E.2d 285 (2016) (citation omitted). In this case, one might reasonably infer from the evidence that Shepard shared a criminal intent with respect to the shooting, and we conclude that the evidence was more than sufficient to authorize a rational jury to find beyond a reasonable doubt that Shepard was guilty of the crimes of which he was convicted, either directly or as a party to the crime. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Hassel v. State, 294 Ga. 834, 837 (1), 755 S.E.2d 134 (2014) ("While the evidence is unclear as to whether Hassel was the actual triggerman in the shooting, this uncertainty is of no consequence, as there was ample evidence to inculpate Hassel as a party to the crimes." (Citation omitted)).

2. We now turn to Shepard's contention that the trial court erred when it denied his motion to suppress the statement that he made to detectives after he was arrested in New Orleans. According to Shepard, the detectives told him not only that his cooperation would be made known to the prosecuting attorneys, but that they would act as his advocates and pass along his requests for lenient treatment. Shepard argues that these assurances amounted to an improper promise of benefit. See former OCGA § 24-3-50 (confession is inadmissible if it was "induced by another by the slightest hope of benefit").² We disagree.

The evidence upon which Shepard relies shows that one detective said that he would "stand with [Shepard] 100%," and the same detective answered, "yeah," when Shepard asked if he possibly could get "an arrangement." And when Shepard said that he wanted to make a "deal" with the district attorney, the other detective also responded, "yeah." After the second detective used the term "accessory," Shepard asked if he would "get time" for that, and the detective said that it was something they had to discuss with the district attorney. Shepard also expressed his willingness "to give you what you need because you can help me," and he wrote down the terms of a possible arrangement to be passed along to the district attorney, including his offer to plead guilty to a lesser charge without jail time.

"This Court consistently has held that the statutory reference to ‘the slightest hope of benefit’ means promises of reduced criminal punishment—a shorter sentence, lesser charges, or no charges at all."

Finley v. State, 298 Ga. 451, 454 (3), 782 S.E.2d 651 (2016) (citation and punctuation omitted). We have reviewed the evidence and conclude that it supports the trial court's finding that Shepard's statement was not given as a result of any promise of reduced criminal punishment. The detectives never told Shepard that he would not be charged with murder, that he would be charged with a lesser crime, or that he would, in fact, receive a shorter sentence if he gave a statement. See Smith v. State, 295 Ga. 283, 285 (1) (a), 759 S.E.2d 520 (2014) ; Woodall v. State, 294 Ga. 624, 629 (4), 754 S.E.2d 335 (2014). The noncommittal statements by the detectives that Shepard complains about do not approach the type of promise that would render his statement involuntary. See Wilson v. State, 293 Ga. 508, 510 (2), 748 S.E.2d 385 (2013). The detectives merely acknowledged that Shepard wanted a deal, that he perhaps could get some arrangement, and that they would talk with the district attorney, but it was clear to Shepard that any agreement would require the assent of the district attorney. See Samuels v. State, 288 Ga. 48, 50 (2), 701 S.E.2d 172 (2010) (officer's "suggestion that he may at some point be willing to talk to the district attorney did not constitute a reward of a lighter sentence"); Stinski v. State, 281 Ga. 783, 784–785 (2) (a), 642 S.E.2d 1 (2007) ; Selley v. State, 237 Ga.App. 47, 49 (3), 514 S.E.2d 706 (1999) (it did not constitute a prohibited "hope of benefit" for a detective to tell the defendant "that he would talk to the prosecutor and see if he could get [the defendant] a good deal if [he] cooperated"). Cf. Canty v. State, 286 Ga. 608, 690 S.E.2d 609 (2010) (defendant's confession was induced by a hope of benefit when told that confessing could result in a "shorter term"). Shepard's "personal belief that talking to detectives would gain him favor from the State does not render his statements involuntary under former OCGA § 24-3-50." Rivers v. State, 296 Ga. 396, 400 (3), 768 S.E.2d 486 (2015) (citation omitted). Because the record supports the trial court's finding that, under the totality of circumstances, Shepard's statement was not induced by a promise of reduced criminal punishment, the court did not err when it denied his motion to suppress that statement.

3. Shepard also contends that the trial court erred when it charged the jury on the law concerning conspiracy. According to Shepard, this charge was not warranted because the indictment did not allege a conspiracy and there was no evidence to support the charge. It is not error, however, "for the trial court to charge the jury on the law of conspiracy when the evidence introduced at trial supports the instruction, even when the defendant is not indicted for conspiracy.... And slight, circumstantial evidence can form a proper evidentiary foundation for [that] charge [ ]." Pyatt, 298 Ga. at 749 (4), 784 S.E.2d 759 (citations and punctuation omitted). Moreover, a jury charge on the law of conspiracy can be supported by "evidence of a common design as well as an express agreement" to commit a crime. Hayes v. State, 298 Ga. 98, 100(2) (a), 779 S.E.2d...