Simmons v. State

• Decision Date: 25 October 2022
• Docket Number: S22A0620
• Citation: 314 Ga. 883,880 S.E.2d 125
• Parties: SIMMONS v. The STATE.
• Court: Georgia Supreme Court

314 Ga. 883

880 S.E.2d 125

SIMMONS

v.The STATE.

S22A0620

Supreme Court of Georgia.

Decided: October 25, 2022

Robert Lawrence Persse, Attorney At Law, 219 West Bryan Street, Suite 306, Savannah, Georgia 31401, Robert L. Sirianni, Jr., George William Thomas, Brownstone, P.A., PO Box 2047, Winter Park, Florida 32790, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Emily Rebecca Polk, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Robert German, Jr., A.D.A., Charles Keith Higgins, District Attorney, Benjamin E. Gephardt, A.D.A., Brunswick Judicial Circuit District Attorney's Office, 701 H Street, Box 301, Brunswick, Georgia 31520, Attorneys for the Appellee.

McMillian, Justice.

After a jury trial in 2017, Troy Simmons was convicted of felony murder and other crimes arising out of the shooting death of Wendell Lee and the aggravated assault of April Tongol.¹ On appeal, Simmons claims that: (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred in failing to instruct the jury completely on corroboration for confessions as required by OCGA § 24-8-823 ; (3) the trial court erred in instructing the jury as to Simmons's flight; and (4) trial counsel rendered constitutionally ineffective assistance. Because Simmons has not shown reversible error, we affirm his convictions.

The evidence presented at trial showed that both Lee and Simmons were members of the "Bloods"² gang and involved in trafficking methamphetamine.³ On December 23, 2013, Lee was driving with his girlfriend, Tongol, to Wayne County to drop off his children at their mother's home. Tongol testified that after dropping off the children, Lee said he had to make a stop and was on the phone with another person who gave him directions to an abandoned house. When Lee and Tongol arrived, two armed men approached either side of the car "asking for money." Tongol said her purse was "snatched" from her after she got out of the car. Lee ran in one direction, and the two men followed him. Tongol ran in the opposite direction until she found people and asked to use their phone to call 911.⁴ Tongol told the 911 operator that the men were armed; that she heard gunshots; and that Lee was likely shot, as she believed Lee to be unarmed.

Wayne County dispatch received a call at 11:49 p.m. on December 23, 2013, and officers responded to an area known as "the Hill." One investigator made contact with Tongol and then at 11:53 p.m. arrived at the abandoned house where Tongol told him she had left her car. There, the investigator found Lee unresponsive. The responding paramedic testified that Lee showed no signs of life. A Georgia Bureau of Investigation ("GBI") forensic pathologist performed Lee's autopsy and testified that there were five bullet wounds in Lee's body and that the cause of death was multiple gunshot wounds.

A GBI special agent who responded to the crime scene around 1:00 a.m. on December 24 testified at trial that Lee's body was located on the ground behind the house. The special agent also testified that he observed items that the coroner removed from Lee's pockets, including a bag of green leafy material consistent with marijuana, a bag of white powder consistent with cocaine, and about $2,930 in cash. Crime scene photos were admitted into evidence, including photos of Tongol's car, her purse and its contents on the ground, and an iPhone found near Lee's body. A semi-automatic .40-caliber pistol was found in the car's glove box. A GBI crime lab examiner testified that the bullet recovered from Lee's body was a .30-caliber metal-jacketed bullet, consistent with being fired from a .38 Special or .357 Magnum revolver or pistol, but not consistent with being fired from a .40-caliber semi-automatic weapon.

GBI Investigator Lawrence Kelly was also involved in the investigation into Lee's death. During that investigation, Investigator Kelly talked to Lee's brother, Luis Bowden, who said that he was involved in drug distribution in Wayne County with both Simmons and Lee. Investigator Kelly then turned his investigation to and began communicating with Simmons. In January 2014, Investigator Kelly tried to arrest Simmons, but Simmons fled from his parole officer who was attempting to execute the arrest warrant. Eventually, Simmons was located in Virginia, where Investigator Kelly interviewed him on March 1, 2014. This interview lasted over five hours and the audio was played for the jury at trial almost in its entirety.⁵

In his recorded interview, Simmons said that he was given instructions from a higher-ranking Bloods gang member known as "Bishop," who was involved with a Mexican drug cartel.⁶ Bishop instructed Simmons to contact Lee because Lee owed $41,000 in relation to the methamphetamine trafficking. Simmons admitted to being at the crime scene, saying that he traveled alone to meet Lee in Jesup while Dominique Brown, Simmons's brother, and Gabe Fraizer drove separately to the same location. At the crime scene, Simmons instructed Brown and Fraizer to "dog pil[e]" or beat up Lee and then put Lee on the phone with Bishop. Simmons was supposed to take Lee to Atlanta to face members of a Mexican cartel who provided the methamphetamine that Lee was selling and to whom Lee owed the money. According to Simmons, he instructed Brown and Fraizer not to cause permanent physical damage and not to kill Lee. Simmons also said that if he had known Fraizer and Brown were going to shoot Lee, he would have stopped it. Simmons further admitted that, after Brown shot Lee, Simmons disposed of the firearm by giving it to someone behind a gas station near Atlanta.

Other evidence also supported Simmons's statement that he had been at the crime scene. Investigator Kelly testified that a cell phone from Tongol's purse was dumped outside of her car. The cell phone's number matched the phone number that family members said belonged to Lee; investigators were unable to determine the cell phone owner for the last call made on the phone. Simmons told Investigator Kelly during his interview that on December 23, he was at "the Beehive" in Liberty County – a gathering place for "Bloods" members. Then, Simmons drove to his apartment in Wayne County before driving to "the Hill," where Lee was shot. Investigator Kelly retrieved records for cell phones belonging to Simmons and Lee, as well as from the unknown number from Lee's recent calls. Then, he used the times, dates, and cell phone tower locations of each device to create a map of the cell phones’ locations on the night of the shooting. Simmons's location, based on the cell phone records, was consistent with Simmons's interview statements. Additionally, the unknown number recovered from Lee's cell phone was in the area of the Beehive at the same time as Simmons's device and then was in Wayne County around the same time as Simmons's device. Lee's phone and Simmons's phone were shown to be in the area where Lee was killed around the same time. Simmons testified that gang members often share or exchange phones and frequently change phone numbers.

Tongol testified that she had never met Simmons before. She further testified that the person who approached the passenger side of the car, where she sat on the night of the shooting, was masked, and that she did not "see anybody directly" that night. When asked if it was Simmons who had a gun on her, she responded that she did not think Simmons was on her side of the car but that, at the time of the shooting, she suspected Simmons to be the person on the driver's side of the car. However, Tongol did not give an explanation as to why she thought that.

Simmons testified at trial in his own defense and stated that he lied during his interview with Investigator Kelly and that, when he asked to call his wife during the interview, he actually called another member of the "Brims" (a subset of the "Bloods") known as "Tee Tee" and was set up on a three-way call with Steven Cortez. Simmons was following gang protocol when he called Cortez, who ranked above Bishop in the "Bloods" gang hierarchy. Simmons testified that, after the phone call with Cortez, he lied to Investigator Kelly about being at the scene when Lee was killed, about giving away the gun, and about the whole story he told law enforcement during his interview. He said that he was supposed to be the "fall guy" because his "name was already out there," given that Lee's family had posted on Facebook the morning after the shooting that Simmons killed Lee. He was also supposed to take his brother, Brown, down with him.

Simmons testified that, unlike what he said in his interview with Investigator Kelly, he was not present when Lee was shot and was actually at the "Beehive" all night. Simmons also claimed at trial that, on the night of the shooting, Lee was supposed to bring Simmons marijuana, but Lee was not answering his phone.⁷ Simmons testified that Fraizer was notified that Lee was on the way to Wayne County, and Fraizer, Brown, Cortez, and others left to go meet with Lee. Simmons claimed that Brown and Fraizer were present at the shooting, but could not say who the shooter was because he was not there. Simmons said that he found out about the shooting later that night. Fraizer, who was not on trial in this case, was called by the defense as a witness but invoked his Fifth Amendment right against self-incrimination and did not testify.

1. Simmons asserts that the evidence was insufficient to sustain his convictions as a matter of constitutional due process. In reviewing sufficiency, we must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). In doing so, "we construe...