Thomas v. State, S16A1520

• Decision Date: 23 January 2017
• Docket Number: S16A1521,S16A1520
• Citation: 300 Ga. 433,796 S.E.2d 242
• Parties: THOMAS v. The STATE. Nixon v. The State.
• Court: Georgia Supreme Court

300 Ga. 433

796 S.E.2d 242

THOMAS

v.The STATE.

Nixon

v.The State.

S16A1520

S16A1521

Supreme Court of Georgia.

Decided: January 23, 2017

Johnson & Associates, Theodore Johnson, for appellant (case no. S16A1520).

Dell Jackson, for appellant (case no. S16A1521).

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Kathryn L. Powers, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Matthew M. Youn, Assistant Attorneys General, for appellee.

HUNSTEIN, Justice.

Appellants Julius Thomas and Desmond Nixon were tried jointly and convicted of murder and related offenses in connection with a crime spree that took place over three days in January 2013.¹ Both men now appeal, arguing that the evidence was insufficient to support their convictions and averring claims of ineffective assistance of counsel. Though we find no merit to the ineffective assistance claims raised by both Appellants, we do find error with regard to Nixon's sentences for three counts of possession of a firearm during the commission of a felony. See Hulett v. State , 296 Ga. 49, 54 (2), 766 S.E.2d 1 (2014) (merger error, even if not raised by the parties, may be addressed by appellate court sua sponte). Therefore, we must vacate those aspects of Nixon's sentences. Further, though the evidence is sufficient to support all of Nixon's criminal convictions and sentences, as well as Thomas' convictions and sentences as they relate to Bandera, we reverse Thomas' conviction and sentence for the armed robbery and set aside his guilty verdicts for the aggravated assaults of B.W. based upon insufficient evidence proving he was a party to these crimes.

Sufficiency of the Evidence

1. Both Thomas and Nixon argue that the evidence presented at their joint trial was insufficient to support their convictions. Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established that Julius Thomas, Desmond "Philly" Nixon and Ishmael "Smurf" Carter were close friends and members of a rap group known as B.G.M. Witnesses recalled that Thomas and Nixon were so close that they would periodically live in the same house and answer incoming calls on the other's cell phone. In January 2013, B.W., Marcelino Rodriguez and Rosendo Bandera were victimized as follows:

B.W. Rape and Armed Robbery

On January 7, 2013, B.W., who was working at a China Express in Clayton County, Georgia was delivering her last order of the night to 293 Roxbury Drive, which is located approximately one block from Thomas' then-residence. Upon B.W.'s arrival at the house, a man she later identified as Carter was standing outside near the driveway. Carter approached and asked to sit inside the vehicle until his friend brought out money to pay for the order. B.W. allowed him to sit in the front passenger's seat and, despite having flirted with her on the phone earlier in the evening when he was placing the delivery order, Carter was now quiet and texting on a phone.

Eventually, another man came outside and spoke with Carter about paying for the meal, leaving the front passenger door open. The men returned to the driver's side door where B.W. was still seated. Shortly thereafter, she felt a gun against her right side. She turned and faced a third man, later identified as Nixon, who demanded money from her. B.W. said she did not have any money, at which point Nixon took her cell phone and told her to remove her clothes. She complied. Nixon proceeded to rape her in the front seat of the car at gun point while the other two men blocked the driver's side door. The group left B.W. in the car and headed back into the house, claiming that they were going to prepare the house to kill B.W., but the men never returned.

B.W. later identified Nixon and Carter from photographic line-ups as two of the men involved in her assault, but she was unable to identify Thomas as the third man. Phone records introduced at trial showed that Thomas' cell phone was used to place the delivery order with China Express the night of the crimes. Law enforcement also located Nixon's finger prints in the car where B.W. was raped. Finally, after B.W. replaced her cell phone and re-activated her old phone number, she began receiving phone calls for "Philly" and "Smurf." In fact, Nixon's girlfriend testified at trial that, after the night B.W. was raped, she would reach Nixon by calling the phone number belonging to B.W.'s stolen cell phone.

Marcelino Rodriguez Armed Robbery

On January 22, 2013, around 11:00 p.m., Marcelino Rodriguez was walking on Old Dixie Highway in Clayton County, Georgia, when a man walked up to him, held a gun to Rodriguez's forehead, and demanded money. Rodriguez handed over his wallet and cell phone. He then saw a second person get out of a green Ford Escort. Rodriguez removed his jacket and threw it at the armed man in an attempt to distract him, but the man moved out of the way and hit Rodriguez over the head with the gun, causing a half-inch laceration to the base of Rodriguez's skull. Rodriguez later identified Nixon in a photographic lineup as the man who pulled the gun on him, but he could not identify the driver of the Ford Escort.

Bandera Murder

On January 24, 2013, Rosendo Bandera was working as a taxi cab driver in Clayton County, Georgia. Bandera's last customer testified at trial that, as he dropped her off in Morrow around 9:45 p.m., he mentioned he had two other fares waiting to be picked up. Cell phone records show that calls from both Thomas' cell phone and Rodriguez's stolen cell phone were placed to Bandera on the night of the murder; Bandera's driver's log also included entries with Thomas' cell phone number. Further, text messages between Thomas' and Rodriguez's phones showed two people discussing the robbery of the taxi driver. At trial, Thomas' girlfriend confirmed that he sent her text messages from Rodriguez's cell phone throughout the day of Bandera's murder.

Around 10:00 p.m. on January 24, surveillance footage showed Bandera picking a customer up from a CVS parking lot. The CVS was very close to Thomas' house where he and Nixon were seen together earlier in the evening. Cell tower records show that the cell phone activity from Thomas' phone and Rodriguez's stolen phone occurred near this CVS. At 10:25 p.m., Bandera was found dead of a gunshot wound

to the head in his taxi cab, which was located in a neighborhood a couple miles from the CVS. After the murder, Nixon warned Thomas' girlfriend not to call him "Philly" anymore; Thomas fled the state after telling his girlfriend that he needed to leave Georgia.

Later in the investigation, officers were informed by two different jail inmates (Brandon Jones and Bryant Douglas) that Nixon had bragged to them about his role in the crime spree. At trial, both Jones and Douglas testified to the numerous inculpatory statements made by Nixon in their presence.

Nixon argues that the evidence relied upon by the State was insufficient to support his convictions and sentences. Namely, Nixon alleges that the testimony of the jailhouse informants was unreliable and wholly circumstantial and that, without their testimony, the remainder of the State's evidence fails to prove his guilt beyond a reasonable doubt. We disagree.

When evaluating the sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." Hayes v. State , 292 Ga. 506, 506, 739 S.E.2d 313 (2013). The issues raised by Nixon go to the weight of the evidence against him, which is a question for the jury to decide, not this Court. Id. Based on the foregoing, the evidence authorized the jury to find Nixon guilty beyond a reasonable doubt of the crimes for which he was convicted.

Thomas argues that the evidence is insufficient to support his guilty verdicts because no eyewitnesses identified him at any of the crimes, and because, he says, the remaining evidence was speculative, establishing only his mere presence. "While mere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense." Belsar v. State , 276 Ga. 261, 262 (1), 577 S.E.2d 569 (2003). See also OCGA § 16–2–20 (party to a crime statute); OCGA § 24–14–6 ("To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.").

Viewed in the light most favorable to the jury's verdict, the evidence presented by the State was sufficient to sustain his conviction and sentence for felony murder and guilty verdicts for the aggravated assaults of Bandera. Witnesses placed Thomas and Nixon together prior to the murder. Phone records and witness testimony established that Thomas possessed and used Rodriguez's stolen cell phone on the day of the murder. Moreover, text messages between Thomas' and Rodriguez's phones showed two people discussing the potential robbery of the taxi driver. Finally, after telling his girlfriend he had to leave Georgia, Thomas fled to Rhode Island where he was later arrested for his participation in these crimes. Accordingly, the jury was authorized to find Thomas guilty of the felony murder and aggravated assaults of Bandera.

However, we find that the evidence was insufficient to support Thomas' guilty verdicts for the armed robbery and aggravated assaults of B.W. Here, although...