Thomas v. State

• Decision Date: 16 July 2001
• Docket Number: No. S01A0321., No. S01A0146
• Citation: 549 S.E.2d 359,274 Ga. 156
• Court: Georgia Supreme Court
• Parties: THOMAS v. The STATE. Taborn v. The State.

549 S.E.2d 359

274 Ga. 156

THOMAS v. The STATE.

Taborn v. The State.

Nos. S01A0146, S01A0321.

Supreme Court of Georgia.

July 16, 2001.

Reconsideration Denied July 27, 2001.

Gregory A. Hicks, James K. Luttrell, Woodstock, for appellant (Case No. S01A0146).

Patrick H. Head, Dana J. Norman, Dist. Atty., Maria B. Golick, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Ruth M. Bebko, Asst. Dist. Atty., for appellee (Case No. S01A0146).

Carlton C. Carter, Canton, for appellant (Case No. S01A0321).

Patrick H. Head, Dist. Atty., Maria B. Golick, Jack E. Mallard, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Ruth M. Bebko, Asst. Atty. Gen., for appellee (Case No. S01A0321). HINES, Justice.

Makeba Thomas and Michael Taborn appeal their convictions for malice murder, armed robbery, theft by taking a motor vehicle, and burglary in connection with the killing of Deidre Stewart. Collectively, Thomas and Taborn challenge the sufficiency of the evidence; the denial of severance; the refusal to suppress evidence seized from the murder scene and at the time of apprehension; the overruling of a Batson objection; the alleged improper injection of character into evidence; the admission of handwriting exemplars; the admission into evidence of certain statements by the victim; the court's instruction to the jury; and the effectiveness of trial counsel. Finding the challenges to be without merit, we affirm.¹

The evidence construed in favor of the verdicts showed that in September 1995, the victim, Deidre Stewart, moved from a townhouse she was renting into an apartment. Thomas and Taborn learned of the vacant townhouse and offered to move in and take over the monthly payments. Stewart agreed to sublet the townhouse and Thomas and Taborn moved in. The couple did not make the rental payments, and they decided to sell Stewart's furniture that was in the townhouse. On October 2, 1995, they enlisted the aid of a neighbor with a pickup truck, telling the neighbor that they were putting the furniture into storage. Instead the neighbor witnessed the sale of the entire truckload of furniture for about $45. Stewart's mail was still being delivered to the townhouse, and Thomas and Taborn were intercepting it. Stewart told friends that she was missing some checks which had been sent to her townhouse address. Thomas and Taborn knew that Stewart had an Acura Integra automobile and other property at her new apartment, and they wanted to get the property. They decided to lure Stewart to the townhouse and told Stewart that they were holding a registered letter for her. On October 4, 1995, Stewart and a friend went to the townhouse to retrieve the letter. Taborn told Stewart that her missing furniture was in storage and that the registered letter was with Thomas, who was not home. Stewart was upset and tried to find Thomas, but then gave up and went home.

The next day, October 5, 1995, Stewart returned to the townhouse alone. Taborn had placed wooden chair legs in locations throughout the townhouse so there would be ready access to a weapon when Stewart was there. Taborn struck Stewart in the head with a chair leg. Thomas or Taborn or both of them then stuffed a piece of cloth in Stewart's mouth, bound her ankles and her hands behind her back with shoelaces, and put a plastic grocery bag over Stewart's head, tying the bag around her neck with a strap from Thomas's swimsuit. They then stripped Stewart of her jewelry and other valuables, wrapped her body in a sheet, and put the body in the townhouse's backyard storage shed. The couple collected debris from the townhouse to cover the body.

Thomas and Taborn took Stewart's car and went to her apartment. They ransacked the apartment, and took a new color television and a small black and white one. They then went to a local pawn shop, and sold the televisions and a ring taken from Stewart's body. Thomas and Taborn returned to the townhouse, and then fled to Ohio in Stewart's Acura Integra.

Stewart was reported missing. On October 12, 1995, the police went to the townhouse. Several front windows were open, the front door was ajar, and there did not appear to be anything in the residence; the townhouse looked abandoned. As police approached the backyard storage shed, they noticed the odor of human decomposition emanating from the locked shed and found Stewart's bound and gagged body under a pile of trash and an old mattress. The appearance of the body was consistent with it having been in the shed for about seven days. The cause of Stewart's death was determined to be suffocation.

Once in Ohio, Thomas and Taborn attempted to burn some of Stewart's possessions; they also stole a license plate and cashed one of Stewart's checks. Additionally, Taborn told a friend in Ohio that he had killed a woman; he confided in another friend that he had killed Deidre Stewart by hitting her with a table leg and placed her body in a shed. The pair then fled to Toronto, Canada. On October 16, 1995, they were approached by Canadian constables in Toronto after selling more of Stewart's jewelry. The constables, who worked the pawn/secondhand shops, became suspicious after observing the jewelry transaction. When asked about ownership of the Acura Integra, Thomas stated that they had traded a Ford Fiesta and $600 for it. Knowing that the vehicle was worth far more and noticing that the license plate was attached only with a single bolt, the constables ran a check of the license plate and vehicle identification number. Thomas and Taborn were placed under arrest for possession of stolen property.

While in Canadian custody, Thomas wrote a note to Taborn stating, "all this is my fault," and suggesting conditions of extradition, including that they not be separated and "No Death Penalty."

1. The evidence, although largely circumstantial, was sufficient to enable a rational trier of fact to find both Thomas and Taborn guilty beyond a reasonable doubt of the malice murder of Deidre Stewart and the related crimes. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Viewed in the light most favorable to the verdicts, the jury was authorized to find that every reasonable hypothesis except Thomas's and Taborn's guilt was excluded. Foster v. State, 273 Ga. 34, 35(1), 537 S.E.2d 659 (2000).

2. Thomas fails in the contention that the trial court erred in denying her motion to sever.

Thomas had the "burden of making a clear showing of prejudice and a denial of due process in the absence of severance." Butler v. State, 270 Ga. 441, 446(4), 511 S.E.2d 180 (1999). The trial court has discretion in determining whether severance is necessary and that determination will not be set aside unless there is an abuse of that discretion. Gee v. State, 261 Ga. 178, 179(3), 402 S.E.2d 719 (1991).

In this case, the trial court did not abuse its discretion by denying Thomas's severance motion. In considering severance, the court should consider

whether the number of defendants will create confusion of the evidence and the law applicable to each individual defendant, whether there is a danger that evidence admissible against one defendant will be considered against another despite the cautionary instructions of the court, and whether the defenses of the defendants are antagonistic to each other or each other's rights.

Butler v. State, supra at 446(4), 511 S.E.2d 180. Here, these factors militate against severance. The number of defendants would not create confusion of evidence and law, the law applicable to each defendant was substantially the same, and Thomas has not shown that the presentation of the evidence confused the jury. Smith v. State, 267 Ga. 372, 373(2), 477 S.E.2d 827 (1996). Thomas has also failed to show that her defense was antagonistic to Taborn's. Holmes v. State, 272 Ga. 517, 518(2), 529 S.E.2d 879 (2000). In fact, the gravamen of both defenses was that the State's case was insufficient because it was purely circumstantial. Finally, Thomas has not shown any prejudice to her case that might have been avoided by severance. Isaac v. State, 269 Ga. 875, 879(7), 505 S.E.2d 480 (1998).

Thomas's reliance on Price v. State, 155 Ga.App. 844, 273 S.E.2d 225 (1980) is misplaced. In Price, "the evidence against one co-defendant was deemed to be so overwhelming and the evidence against the other so slight that the `spillover' effect of the evidence against the former was viewed as an important factor in the latter's conviction." Saleem v. State, 169 Ga.App. 952, 954(2), 315 S.E.2d 487 (1984). In this case, the evidence against Taborn was indeed overwhelming, but the evidence against Thomas was equally compelling.

3. The trial court did not err in denying Thomas's motion to suppress evidence seized from the victim's townhouse. "[R]ights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched." Brown v. State, 240 Ga.App. 321, 323(1), 523 S.E.2d 333 (1999), quoting Steagald v. United States, 451 U.S. 204, 221, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). The landlord testified that permission had never been given to sublet the townhouse, and that he had ordered Thomas and Taborn to vacate the premises, because they were trespassing, more than two weeks prior to the first search. When an individual has no ownership or possessory interest in the premises, the individual has no expectation of privacy, and therefore, lacks standing to challenge the validity of a search. Brown v. State, supra at footnote 2; Moody v. State, 232 Ga.App. 499, 504(4)(a), 502 S.E.2d 323 (1998). Even assuming that prior to the searches at issue, Thomas had been lawfully at the townhouse, the evidence was that the townhouse was abandoned by the time of the initial search; therefore, Thomas...