Waller v. State

• Decision Date: 17 May 2021
• Docket Number: S21A0276
• Court: Georgia Supreme Court
• Parties: WALLER v. The STATE.

311 Ga. 517

858 S.E.2d 683

WALLER

v.The STATE.

S21A0276

Supreme Court of Georgia.

Decided: May 17, 2021

Angela Dillon, P.O. Box 5587, Columbus, Georgia 31906, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Mark Samuel Lindemann, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Julia Anne Fessenden Slater, District Attorney, William Donald Kelly, Jr., A.D.A., Chattahoochee Judicial Circuit District Attorney's Office, 100 Tenth Street, Columbus, Georgia 31902-1340, for Appellee.

LaGrua, Justice.

Appellant Derain Waller was convicted of felony murder and other crimes in connection with the shooting death of Demonde Dicks, Jr. On appeal, Appellant contends that the evidence was legally insufficient to support his convictions generally and his conviction for armed robbery specifically, and that the trial court erred in sentencing him on the armed robbery and felony murder counts.¹

For the reasons that follow, we affirm Appellant's convictions for felony murder and possession of a firearm during the commission of a felony, but vacate his conviction for armed robbery because that conviction should have merged into the felony murder count for sentencing purposes.

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Appellant was arrested on June 17, 2016, after being implicated by his cousin and co-defendant, Jacquawn Clark, in the June 15, 2016 murder of Dicks. According to Clark, on the morning of June 15, Dicks had traveled from Atlanta to Columbus aboard a Groome Transportation van. Surveillance video showed that Dicks was carrying a black backpack when he arrived in Columbus. Upon his arrival, Dicks called his friend Clark, also known as "Sosa," to arrange for Clark to pick him up at the Groome Transportation Center.

At approximately 12:45 p.m., Clark picked up Dicks at Groome, driving a black Monte Carlo. Dicks told Clark he was in Columbus for a few hours "to make some moves," which Clark understood to mean to buy or sell cocaine. Clark and Dicks went to Family Dollar to purchase plastic wrap. After they entered the store, Dicks received a phone call. Dicks handed Clark some money to purchase the plastic wrap and went outside into the parking lot, still on the telephone. After Clark made the purchase and exited the store, he saw Dicks in the parking lot, leaning into the passenger side window of a white Camaro. Clark approached Dicks and handed him the plastic wrap, and Dicks then gave it to someone inside the vehicle. Dicks also put some money into his pocket.

Clark and Dicks then drove to a nearby residence where Dicks purchased marijuana. Around this time, Clark made two phone calls to a contact named "Spoonk" – a moniker Appellant used to identify himself on Facebook.

After Appellant received the phone calls from Clark, Appellant exchanged several text messages with Akeveius Powell, Appellant's other co-defendant at trial. At trial, Detective Sandra Hickey testified about the content of this text exchange, which took place between 1:43 p.m. and 2:04 p.m. A summary of her testimony regarding their text exchange is as follows:

At 1:43 p.m., Appellant initiated a text conversation with Powell, telling Powell that a man with Clark had "40 bands," and "he a murder homie." Appellant then asked Powell for the "green light." Powell asked who the man was, and Appellant responded that he did not know the man, but "he wit[h] sosa" (a/k/a Clark). Powell texted in response, "Greenlight shawty." Appellant asked Powell to come and get him, but Powell responded that he did not have the "wheels yet," followed by, "Get the murder "ni**a." Appellant responded that he was fixing to "do" the man and then have Clark bring Appellant to Powell's house, again stating that the man had "[a]bout 50k." Powell responded, "Okilla."

Appellant and Clark also exchanged text messages during this timeframe, and Detective Hickey testified at trial about the content of this exchange, as well, which is summarized as follows: Appellant texted Clark, stating, "Let me do him." Clark responded that he would let Appellant "do" it, but Clark had to set it up first because he and Dicks were supposed to be "Rxllin." Clark then texted Appellant that they would have to kill Dicks, to which Appellant responded, "Ik."

According to Clark, Clark and Dicks arrived at the Double Churches Park between 2:30 p.m. and 3:00 p.m. and went to the basketball court in the back of the park to smoke marijuana. Witnesses testified that they also saw a third man with Clark and Dicks when they arrived at the park. Right after the men finished smoking, Dicks was shot in the back of the head, and Clark immediately left the park in the Monte Carlo. As he was leaving, Clark called Powell and drove directly to the Walden Pond Apartments, where Powell was staying. Clark then called his mother, who advised him that he needed to go to the police to tell them what happened. Clark's mother picked him up at the apartment complex, and they returned to the park to talk to the police.

Harvey Carter was at the park that afternoon. While Carter was standing in the parking lot, he saw some people near the basketball court. Carter then heard what sounded like "a firecracker, maybe a car backfire, maybe gunfire," and saw two men enter the parking lot, get into a black car, and drive away. Carter noticed that the men were no longer at the basketball court and saw something on the ground that resembled a bag or a jacket. Upon realizing it was a body, he alerted a park staff member, who then called 911.

Hunter Bradberry was in the parking lot at the park that afternoon when a car with three men inside pulled up next to him. Bradberry saw the men get out and walk to the basketball court. Later, he heard what sounded like a gunshot.

At 3:01 p.m., the Columbus Police Department received a call about the shooting at the park. When police officers arrived, they found Dicks, deceased, lying on the ground near the basketball court with a fatal gunshot wound to the back of his head.

Between 3:30 p.m. and 4:00 p.m., Clark returned to the scene and spoke to police officers, telling them he knew the identity of the shooter. Clark agreed to go to police headquarters to be formally interviewed. In the interview, Clark told police officers that he went to the park with Dicks to smoke marijuana, and when they finished and turned to leave, Dicks was "being shot, falling to the ground." Clark stated that "he knew who committed this crime and that [the] individual was [Clark's] cousin." Clark stated that after the shooting, he ran off and drove to Walden Pond Apartments, immediately calling his mother to tell her what happened. Clark did not tell police officers about any communications he had with Appellant or Powell prior to the shooting or mention the black backpack that was in Dicks's possession when Clark picked him up at Groome.

Following the interview with Clark, police officers obtained his cell phone. Police officers then executed search warrants to obtain records connected to Clark's cell phone, and later, to the cell phones used by Appellant and Powell on June 15. After additional investigation, police officers asked Clark to return to police headquarters for a second interview on June 17.

During this interview, police officers asked Clark if Dicks had anything in his possession when Clark picked him up on June 15, and Clark mentioned Dicks was carrying a small backpack. Clark also stated that he saw the backpack at the Walden Pond Apartments after Dicks was shot. Police officers asked Clark if he had any interest in robbing Dicks, and Clark denied any such interest. At the conclusion of this interview, Clark was arrested. Police officers then secured arrest warrants for Appellant and Powell, and Appellant was arrested later that day.

During Appellant's incarceration following his arrest, he shared a jail cell with Anthony Faust for approximately two months. During this time, Appellant told Faust that he and his cousin "robbed a dude and killed the dude for $40,000." Appellant told Faust the crime happened at Double Churches Park by the basketball court, saying "they drove back from the Groome to the park," "smoked a blunt," and then "killed the dude." Appellant indicated he had fired the shot and that the $40,000 was inside the backpack the man he killed had with him. Appellant said he gave his cousin $15,000, and that Clark was supposed to go to Atlanta, but instead, Clark went and got his mother and returned to the crime scene. Appellant said Clark was the one who set everything up, and they communicated about it by cell phone. Appellant said he should have killed Clark afterward. Faust then reported what Appellant told him to the deputies at the jail who contacted the police.

2. Appellant contends that the evidence presented at trial was insufficient to support his convictions and, in particular, was insufficient to support his conviction for armed robbery. We disagree.

In evaluating the sufficiency of the evidence of a defendant's guilt, "the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt pursuant to Jackson v. Virginia [, 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ]." Battle v. State , 301 Ga. 694, 701 (5), 804 S.E.2d 46 (2017). Thus, we do not reweigh the evidence or resolve conflicts in trial testimony; instead, "we view the evidence in a light most favorable to the ... verdicts, with deference to the jury's assessment of the weight and credibility of the evidence." Id.

(a) Addressing first the armed robbery charge, which was the predicate offense for the felony murder conviction, Appellant asserts that the State's theory at trial was that Dicks had $40,000 in his backpack at the time he was killed. App...