Thornton v. State

• Decision Date: 21 October 2019
• Docket Number: S19A0755
• Citation: 307 Ga. 121,834 S.E.2d 814
• Court: Georgia Supreme Court
• Parties: THORNTON v. The STATE.

307 Ga. 121

834 S.E.2d 814

THORNTON

v.The STATE.

S19A0755

Supreme Court of Georgia.

Decided: October 21, 2019

Genevieve Holmes, for appellant. Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Marc A. Mallon, 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.

Nahmias, Presiding Justice.

Appellant Roderick Thornton was convicted of malice murder and a firearm offense in connection with the shooting death of Jonathan Brady. Appellant contends that the trial court erred by improperly instructing the jury on aggravated assault and by failing to instruct on a witness's motives in testifying and on accomplice corroboration. He also contends that his trial counsel provided ineffective assistance by not objecting to the trial court's failure to give those charges and by eliciting certain testimony during his cross-examination of the lead detective on the case. Each of these claims is meritless, so we affirm.¹

1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's trial showed the following. Brady was a drug dealer in the Fulton Industrial Boulevard area of Fulton County, and Appellant was a competing drug dealer in that area. On the night of September 11, 2014, Korey Williams called Brady to buy drugs. They agreed to meet at a gas station on Fulton Industrial Boulevard. Around 10:45 p.m., Brady pulled his white Buick into a motel parking lot across the street from the gas station. Williams assumed that Brady wanted to meet at the motel instead, and he began to walk toward Brady's car.

As Brady sat in his car outside the motel, his friend Tariq Harris, who had been smoking marijuana nearby, walked up to the car, leaned into the open front driver's-side window, and started talking with Brady. According to Harris, he then heard a loud knock followed by a gunshot, and he jumped back from the car. He heard someone mumble, "I wasn't playing" or "You thought I was playing, b**ch."² Harris saw Appellant, whom he had known for many years, standing next to him, close to the rear driver's-side window. Harris also saw another man he knew, Robert Henderson, standing behind the car. Henderson, who had been using drugs nearby and was walking through the motel parking lot, saw his friends Harris and Appellant standing near the car; Henderson then heard the gunshot as he walked behind the car.

Williams, whose view of Brady's car was partially obstructed by bushes, saw Harris and then Appellant approach the car; he also saw another man standing further away from them. Williams then heard the gunshot. He later told the police that after he heard the sound, he asked what it was, and Appellant said that it was a tire popping, although Williams knew it was not. Williams also said that after the shot, Harris asked Appellant, "What the hell you do that for?" Harris, Henderson, Williams, and Appellant did not call the police. Instead, they walked separately away from the motel.³

Almost immediately after the gunshot, which hit Brady under his left arm and then transected his pulmonary artery, he drove his car across Fulton Industrial Boulevard, but he lost consciousness and the car careened into a grassy area across the street from the motel. Emergency responders transported Brady to a hospital, where he soon died from the gunshot wound. The medical examiner determined that the .45-caliber bullet recovered from Brady's body caused an atypical entrance wound consistent with its having passed through window glass before hitting Brady.

Investigators found a bullet hole in the rear driver's-side window of Brady's car. In the car, they found three bags of crack cocaine, two digital scales, plastic baggies, a 9mm handgun, three cell phones, and $537 in cash. They also found a .45-caliber shell casing in front of the motel. A firearms examiner concluded that the bullet from Brady's body and the shell casing had not been fired by the 9mm handgun found in Brady's car.

The lead detective on the case obtained a video recording of the shooting from one of the motel's surveillance cameras. The recording, which was grainy and had no audio, showed Brady's car pull up near the motel's entrance; moments later, a man in a white t-shirt approached the car and leaned into the front driver's-side window. Another man walked up to the car a few seconds later. He stopped near the first man, closer to the rear driver's-side window. Almost immediately, both men made sudden movements, and the car sped away. The video also showed a third man approaching the car; that man was standing just behind the car when it left. During his interview with investigators and again at trial, Harris was shown the surveillance video and identified himself as the man in the white t-shirt, Appellant as the second man who approached the car, and Henderson as the man who was standing just behind the car. Henderson made the same identifications when shown the video at trial.⁴

Appellant, who was a convicted felon, was arrested nearly five months after the shooting. He did not testify at trial; his defense theory was that Harris alone had committed the murder. To support that theory, Appellant argued that the surveillance video showed Harris swing his arms out as if to shoot Brady just before the car sped away. The lead detective, however, testified that Appellant was the only person shown on the video who was standing in a position to shoot through the rear driver's-side window. The State argued that Harris, who was standing by the open front driver's-side window before the car sped away, would not have shot Brady through the closed rear window. In addition, the prosecutor asked Harris if he had committed the murder, and he squarely denied it.

Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State , 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " (citation omitted)).

2. Appellant contends that the trial court erred by improperly instructing the jury on aggravated assault and by failing to instruct on a witness's motives in testifying and on accomplice corroboration. Appellant's trial counsel did not object to the aggravated assault charge or to the omission of the witness's-motives charge, and counsel withdrew his request for an accomplice-corroboration instruction. Thus, as Appellant acknowledges, this Court's review of these claims is for plain error only. See OCGA § 17-8-58 (b) ; State v. Kelly , 290 Ga. 29, 32, 718 S.E.2d 232 (2011).

To show plain error, Appellant must demonstrate that the instructional error was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. "Satisfying all four prongs of this standard is difficult, as it should be."

Hood v. State , 303 Ga. 420, 425-426, 811 S.E.2d 392 (2018) (citation omitted).

(a) Appellant argues that the trial court committed plain error by erroneously instructing the jury on aggravated assault, which allegedly resulted in the jury's improperly finding him guilty of that count and the count of felony murder based on it. We need not decide whether the aggravated assault instruction was flawed, however, because Appellant was not convicted of or sentenced for aggravated assault or felony murder. Thus, this claim is moot. See Johnson v. State , 302 Ga. 774, 786, 809 S.E.2d 769 (2018) ; Hickman v. State , 299 Ga. 267, 272, 787 S.E.2d 700 (2016).

(b) Appellant also contends that the trial court wholly failed to give a requested pattern jury instruction on a witness's motives in testifying. See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.31.80 Immunity or Leniency Granted Witness (instructing that in assessing a witness's credibility, the jury may consider his possible motives in testifying, including any possible pending prosecutions, negotiated pleas, grants of immunity, or leniency). This claim is contradicted by the record, which shows that the trial court did give the pattern charge. Accordingly, there was no error, much less plain error.

(c) Appellant asserts that the trial court committed plain error by failing to instruct the jury under OCGA § 24-14-8 that the testimony of an accomplice must be corroborated to establish a fact. Appellant withdrew his request for an accomplice-corroboration instruction during the charge conference, so the trial court did not give that charge and instead instructed the jury that "[t]he testimony of a single witness, if believed, is sufficient to establish a fact. Generally there is no legal requirement of corroboration of the witness, provided you find the evidence to be sufficient." Because there was no evidence that any witness was an accomplice, Appellant cannot prevail on this claim.

"A jury instruction on the need for accomplice corroboration should be given if there is slight evidence to support the charge. An accomplice is someone who shares a common criminal intent with the actual perpetrator of a crime." Stripling v. State , 304 Ga. 131, 136, 816 S.E.2d 663 (2018) (citation and punctuation omitted). See also OCGA § 16-2-20 (defining parties to a crime). " ‘(M)ere presence or...