Stanbury v. State

• Citation: 299 Ga. 125,786 S.E.2d 672
• Decision Date: 23 May 2016
• Docket Number: No. S16A0321.,S16A0321.
• Parties: STANBURY v. The STATE.
• Court: Supreme Court of Georgia

299 Ga. 125

786 S.E.2d 672

STANBURY

v.The STATE.

No. S16A0321.

Supreme Court of Georgia.

May 23, 2016.

Eric J. Taylor, Atlanta, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Matthew Blackwell Crowder, Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Paul L. Howard Jr., Dist. Atty., Paige Reese Whitaker, David K. Getachew–Smith, Sr., Asst. Dist. Attys., for appellee.

MELTON, Justice.

Following a jury trial, Thaddius Stanbury appeals his convictions for the murder of Allen Blash, Jr., and possession of a firearm during the commission of a felony.¹ Stanbury contends that: (1) the trial court committed plain error by not providing a jury charge on the necessity of corroborating accomplice testimony; (2) trial counsel rendered ineffective assistance by failing to request a jury charge on accomplice corroboration; (3) the State presented insufficient corroborating evidence of Salik McKenzie's accomplice testimony; and (4) the trial court erred by failing to exclude McKenzie's accomplice testimony. For the reasons set forth below, we reverse.

1. Viewed in the light most favorable to the verdict, the record shows that, during the day on August 20, 2009, Krystel Quarles and Blash were walking back to Quarles's boarding home when two men pulled up in a gold Honda automobile and called Blash over to them in order to purchase marijuana. Later in the afternoon, Blash received a phone call from McKenzie, who wanted to purchase more marijuana. That evening, McKenzie and Stanbury arrived at the front door of Quarles's boarding home. Although Quarles did not know Stanbury, she later gave a physical description of the man accompanying McKenzie that matched Stanbury's appearance.² Quarles was upstairs when she heard Blash ask, “what are you doing?” Quarles peeked downstairs and saw McKenzie's accomplice restraining Blash's hands behind his back and McKenzie pointing a gun at him. Quarles recognized McKenzie, but only caught brief glimpses of the accomplice's face. Blash got his arms loose, pulled out his gun, and pursued the two men. Quarles lost sight of the two men, then heard several gunshots, and saw Blash fall forward onto the ground. She called 911 and saw the man matching Stanbury's description run down the road. Quarles saw McKenzie wrestling with Blash, heard a final gunshot, and saw McKenzie injured in the front lawn. After the commotion dissipated, Quarles attended to Blash, who was fatally injured. Ballistics experts concluded Blash was shot with both a .38 caliber gun and a .45 caliber gun. Quarles affirmatively identified McKenzie as the man holding the gun at a photo lineup eight days after the shooting, as well as at trial. Quarles described Stanbury as taller than McKenzie, with shoulder length dreadlocks, and a very dark complexion. After the shooting, Andrae Wilson heard cries for help and ran outside. Wilson took the injured McKenzie to the hospital, and told police that he saw Stanbury and McKenzie walking in the neighborhood prior to the shooting. At trial, Wilson identified Stanbury as a person he saw near Quarles's house after he rushed out to respond to cries for help.

Antonio Studiemyer said he saw Stanbury with McKenzie earlier the day of the shooting, and identified Stanbury in a photo lineup as one of the people who told him McKenzie had been shot. Several people, including Studiemyer, Cedric Carrigan, and Deroyce Simmons, saw a second man matching Stanbury's description leave the scene of the shooting, or near the scene close to the time of the shooting. Carrigan and Simmons saw someone carry the wounded McKenzie out of the house, tuck a pistol into a pouch, and flee down the street. Police located and arrested Stanbury on May 18, 2010 in Worchester, Massachusetts, where he gave the police a fake name of “Destino Williams.”

McKenzie and Stanbury began trial as co-defendants. During trial, McKenzie accepted a plea offer from the State and testified against Stanbury.³ According to McKenzie's testimony, Stanbury shot Blash. McKenzie testified Stanbury owned a .45 caliber gun, and McKenzie said he owned a .38 caliber gun. He also identified Stanbury in court as the person who went with him into Quarles's house. He testified that only he, Stanbury, Blash, and Quarles were inside the house when the incident occurred. McKenzie testified that Stanbury tried to snatch the marijuana from Blash during the drug transaction, that McKenzie intervened in the “tussle,” and McKenzie's .38 caliber gun fell out of his waist. Although McKenzie gave varying descriptions of the events, he stated that, after his gun fell on the ground, Stanbury picked it up and shot Blash with both McKenzie's gun and Stanbury's own gun. The next thing McKenzie knew, McKenzie was shot and lying on the ground injured.

This evidence was sufficient to enable the jury to find Stanbury guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Nonetheless, Stanbury contends there was insufficient evidence to corroborate McKenzie's testimony and secure his conviction. We disagree.

Former OCGA § 24–4–8⁴ “imposes an additional requirement where a fact necessary to conviction is supported solely by testimony of an accomplice like [McKenzie].” Johnson v. State, 288 Ga. 803, 805(2), 708 S.E.2d 331 (2011). Under the statute, “[in] felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient [to establish a fact]” and must be supported by the testimony of another witness or by “corroborating circumstances.” See Ramirez v. State, 294 Ga. 440, 442, 754 S.E.2d 325 (2014). Furthermore,

sufficient corroborating evidence may be circumstantial, it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged. It must, however, be independent of the accomplice testimony and must directly connect the defendant with the crime, or lead to the inference that he is guilty. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.

(Citations and punctuation omitted). Threatt v. State, 293 Ga. 549, 551(1), 748 S.E.2d 400 (2013). Evidence of the accused's conduct before and after the crime was committed may give rise to an inference that he participated in the crime. See Bradford v. State, 262 Ga. 512, 513, 421 S.E.2d 523 (1992).

McKenzie gave three separate statements maintaining that Stanbury was the second man who participated in the attendant crimes on August 20, 2009. The State provided sufficient corroboration of McKenzie's testimony, including (1) Quarles's eyewitness account indicating a second man matching Stanbury's description participated in the murder, (2) testimony from multiple individuals placing Stanbury at the crime scene around the time of the murder, (3) testimony from witnesses saying the second man who carried the wounded McKenzie out of the house had a handgun and matched Stanbury's description, and (4) Stanbury fleeing to Massachusetts following the murder and assuming the false identity of “Destino Williams.” The aforementioned evidence, though circumstantial, gives at least slight corroboration to McKenzie's testimony. See, e.g., dmond v. State, 267 Ga. 285, 287, 476 S.E.2d 731 (1996) ; Bradford, supra, 262 Ga. at 513, 421 S.E.2d 523. Therefore, there was no violation under former OCGA § 24–4–8.

2. Stanbury contends the trial court committed plain error by failing to charge the jury on the necessity of corroborating McKenzie's accomplice testimony under former OCGA § 24–4–8. Under the specific facts of this case, we agree. A review of the jury instructions shows that the jury was told only that particular facts could be established based on the testimony of a single witness, which would necessarily include accomplice testimony. Therefore, in essence, the jury received an instruction that it could believe the facts as described by McKenzie without corroboration—in direct contradiction to former OCGA § 24–4–8. As McKenzie was the only witness to affirmatively establish Stanbury's participation in the commission of these crimes, the trial court committed plain error in omitting the accomplice corroboration charge, as more fully discussed below.

Here, appellate review for plain error is proper under OCGA § 17–8–58(b) because, notwithstanding Stanbury's failure to request an accomplice corroboration charge or object to its omission at trial, Stanbury properly asserts an error in jury instructions on appeal. See Hamm v. State, 294 Ga. 791, 798(2), n. 8, 756 S.E.2d 507 (2014) ; Cheddersingh v. State, 290 Ga. 680, 683(2), 724 S.E.2d 366 (2012) ; State v. Kelly, 290 Ga. 29, 32(1), 718 S.E.2d 232 (2011).

There are four prongs in the test for plain error.

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

(Citations and punctuation omitted.) Kelly, supra, 290 Ga. at 33(2)(a), 718 S.E.2d 232.

As to the first and second prongs of the plain error test, the trial court's failure to provide a jury charge regarding accomplice corroboration was clear error not subject to reasonable dispute. “For an error to be obvious for purposes of plain error review, ‘it...