Smith v. State

• Decision Date: 09 September 2019
• Docket Number: S19A0491
• Court: Georgia Supreme Court
• Parties: SMITH v. The STATE.

306 Ga. 753
833 S.E.2d 117

SMITH
v.
The STATE.

S19A0491

Supreme Court of Georgia.

Decided: September 9, 2019

833 S.E.2d 118

Dell Jackson, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Stephany J. Luttrell, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.

Boggs, Justice.

306 Ga. 753

Appellant Talib Nasheef Smith was convicted of murder, criminal street gang activity, and other crimes in connection with the 2013 shooting death of Khaseim Daru Walton. He appeals, asserting insufficiency of the evidence to support his convictions and error in a jury instruction. For the reasons stated below, we affirm.¹

833 S.E.2d 119

306 Ga. 754

1. In Stripling v. State , 304 Ga. 131, 816 S.E.2d 663 (2018), this Court affirmed the convictions of Smith’s co-defendants Tshombe Stripling and Elijah Brewer, who were tried together with Smith. There, this Court summarized the evidence, in the light most favorable to the verdicts, as follows:

Walton was a cocaine dealer. Shortly before 9:00 p.m. on November 25, 2013, he drove one of his clients, Gloria Traylor, to a rooming house in the Oakland City area of Atlanta to show her a room that he was planning to rent as a place at which he could sell drugs. As they approached the house, Traylor saw a man she knew as "Chalee" standing outside near a vehicle that looked like a Suburban or a truck. At trial, Traylor identified Talib Smith as Chalee. A short time later, when Walton and Traylor were backing up to leave the house, a man got out of the Suburban-like vehicle, approached the driver’s side of Walton’s car, and asked to buy some drugs. After Walton prepared the cocaine, there was a struggle between him and the man standing outside the car. Traylor then saw three guns pointed in the driver’s side window; she heard shots and ducked down. Walton drove into a pole, and Traylor got out of the car screaming. Walton had been shot four times; he died from his injuries soon after he arrived at the hospital. Traylor could not identify the man who asked to buy drugs or any of the people holding the guns.

Paul Whibbey, the manager of the rooming house, looked out his window when he heard a commotion around the time of the shooting. He saw four individuals walking toward Walton’s car from a black SUV. Whibbey testified that one had short dreadlocks and another had well-kept dreadlocks. At the time of the shooting, Stripling and Talib had twists or

306 Ga. 755

dreadlocks; Brewer did not have dreadlocks. Whibbey heard the people saying "get this, get that, get his money." He saw the man with the well-kept dreadlocks shoot a gun and heard eight or nine shots. Then the four individuals got back in the SUV and left. After the shooting, Whibbey was interviewed by Detective Kevin Leonpacher of the Atlanta Police Department, and he identified Neddrick Smith from a photo lineup as the shooter.

Neddrick, who had dreadlocks, was arrested and interviewed by the police. He denied any involvement in the shooting. He said that he had driven his Kia sedan to the rooming house that day with his brothers, Nemiyas and Nierris Smith, and Monquel Yancey to buy a heater from someone who lived there, but he had driven away from the house and just arrived at his aunt’s house nearby when he heard the shots. He jumped back in his car and returned to the rooming house to investigate. He also said that his brother Talib, who some people say looks like him, may have been involved in the shooting.^{[2 ]}

Nemiyas and Nierris also were interviewed by Detective Leonpacher, and their interviews were played for the jury after the two brothers testified and said that they

833 S.E.2d 120

did not remember most of what they had said in their interviews. Nemiyas told the detective that when he was outside the rooming house with Neddrick, Nierris, and Yancey before the shooting, he saw Knuckles (Stripling’s nickname), Tommy Gunz (Brewer’s nickname), Talib, Katrina Shardow, and someone named Pat pull up in a black Jeep and Talib get out. Nemiyas said that all of those people were members of the Bloods gang. Nierris similarly told Detective Leonpacher that he saw five people in a Jeep, including Talib, "Shombe," "Elijah," and a woman; Nierris identified Tshombe Stripling in a photo lineup as being in the Jeep, but did not identify Elijah Brewer in a lineup. About a week before the murder, Shardow had rented a black Jeep Cherokee SUV. Three weeks after the murder,

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