White v. the State.
| Decision Date | 22 February 2011 |
| Docket Number | No. A10A2316.,A10A2316. |
| Citation | 308 Ga.App. 38,706 S.E.2d 570 |
| Parties | WHITEv.The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Chaunda Brock, Austell, for appellant.Gwendolyn Keyes Fleming, District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.MIKELL, Judge.
In this case arising from a botched drug deal, a jury found Bobby White guilty of aggravated assault (three counts), attempted violation of the Georgia Controlled Substances Act, and possession of a firearm during the commission of a felony. He was acquitted of two counts of felony murder. White's co-defendant, Quinton Newton, was found guilty of aggravated assault and possession of a firearm during the commission of a felony; this Court subsequently affirmed Newton's conviction.1 White appeals the denial of his motion for new trial, asserting that the trial court erred in admitting hearsay evidence as a declaration of a co-conspirator; that absent the challenged hearsay evidence, the remaining evidence was insufficient to support his convictions for aggravated assault; that the trial court erred in denying his motion to sever; and that he received ineffective assistance of counsel. Discerning no error, we affirm.
On appellate review of a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence.2 We do not weigh the evidence or judge the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt.3
Properly viewed, the evidence adduced at trial shows that on August 22, 2007, Anselmo Lozano arranged a drug deal between his supplier, Christopher Bryant, and White. Lozano testified that Bryant agreed to sell and White agreed to buy two pounds of marijuana for $2,400. With a shoebox containing the marijuana, Bryant drove Lozano and Newton, Bryant's cousin, to the agreed-upon meeting place, a DeKalb County apartment complex, to complete the deal. Bryant told Lozano that he was bringing Newton along for “protection,” because Newton was armed.
At the apartment complex, the three men met up with White and David Montford, a friend of White's. After White “checked out” the contraband in Bryant's car, he complained that the price was too high. Bryant put his car in reverse to leave, but White reached into his pocket and pulled out a gun and started firing into the car, in an attempt to rob the men before they could drive away. Lozano testified that he got out of the car and ran for his life as soon as he saw White's gun and heard gunshots. Although Bryant and Newton each denied having a gun, both men were observed returning White's fire. In the ensuing gunfight, Bryant was shot in the back; however, he survived his wound and drove away from the scene with Newton. Montford died at the scene from multiple gunshot wounds.
White, Bryant, Newton, and Lozano were arrested. Bryant and Lozano pled guilty to charges related to this incident and testified as witnesses at the trial of White and Newton.
1. Montford's girlfriend, Temika Johnson, testified that Montford told her that “he was going somewhere with Bobby White.” Johnson further testified that as Montford left to meet White, he told her that he and White planned to meet “someone” to get “weed,” but actually they were “just going to rob him for it.” Johnson also testified that she heard White tell a friend that he was about to “make a move right quick,” meaning that he was going to rob or murder someone. White contends that the trial court erred in admitting Johnson's hearsay testimony under the exception to the hearsay rule codified at OCGA § 24–3–5,4 which provides for the admissibility of declarations of co-conspirators, because there was no other evidence of a conspiracy between White and Montford. We disagree.
In order for an out-of-court statement to be admissible under OCGA § 24–3–5, “the [s]tate must make a prima facie showing of the existence of the conspiracy, without regard to the declarations of the co-conspirators.” 5 “A conspiracy may be shown by proof of an agreement between two or more persons to commit a crime.” 6 That such an agreement existed “may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose”; 7 and the “ common design” may be shown by direct or circumstantial evidence.8 “ Conduct which discloses a common design, even without proof of an express agreement between the parties, may establish a conspiracy.” 9 Whether a conspiracy existed is a question for the jury to determine,10 and the jury may consider, as circumstances giving rise to an inference of the existence of a conspiracy, the defendant's “[p]resence, companionship and conduct before and after the commission of the alleged offenses.” 11
Here, evidence independent of Montford's declarations to Johnson authorized the jury to infer that White and Montford had entered into a conspiracy to rob Bryant, rather than to pay for the marijuana. First, there was evidence that White and Montford were companions. Lozano testified that Montford was a friend of White's; and Johnson, who was Montford's girlfriend and was pregnant with his child at the time of his death, testified that she had called White on her phone at Montford's request on several occasions and that she could recognize White's voice. Further, independent evidence showed that White and Montford were together at the scene on the day of the shooting. Michael Heard, a resident of the apartments, observed these events from his apartment on an upper floor. Heard testified that he saw White and Montford together at the apartments before Bryant's car pulled up and before the shooting started. Lozano testified that Montford was with White at the meeting place; that when White and Montford approached Bryant's car, they stood together, with White standing outside the back door on the driver's side, and Montford standing behind White, next to the car's taillight. Lozano further testified that White was trying to rob the occupants of the car. Heard testified that Montford had a gun in his hand as he lay dead on the ground; and that after Bryant and Newton drove away, White came and got this gun from Montford's body. Heard could see the butt of another gun hanging out from White's pants pocket.
The foregoing evidence was sufficient to authorize the jury to find that there was a conspiracy between White and Montford to rob Bryant and his companions. 12 Accordingly, the trial court did not err in admitting the testimony of Johnson as to out-of-court declarations by co-conspirator Montford. 13
2. White asserts that because Johnson's testimony as to Montford's out-of-court statements should have been excluded, the remaining evidence against him was insufficient to support his convictions for aggravated assault. In Division 1 above, we rejected White's argument that Johnson's testimony should have been excluded. We also reject White's challenge to the sufficiency of the evidence.
Under OCGA § 16–5–20(a), a person commits the offense of simple assault when he either “(1) [a]ttempts to commit a violent injury to the person of another; or (2) [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” A person commits aggravated assault if he commits assault “[w]ith a deadly weapon.” 14 The indictment charged White with aggravated assault, in that White “did make an assault ... with a handgun, a deadly weapon,” upon the persons of Bryant (Count 5), Lozano (Count 6), and Newton (Count 7). Overwhelming evidence adduced at trial, and summarized above, showed that White was at the scene, that White had a handgun in his possession, and that he drew his handgun and pointed it at Bryant, Lozano, and Newton as they were sitting in Bryant's car, thereby placing them “in reasonable apprehension of immediately receiving a violent injury.” 15 White points to conflicts in the testimony, but “[r]esolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” 16 The factfinder in this case was the jury. Accordingly, the trial court did not err in determining that the evidence was sufficient to support White's convictions for aggravated assault.17
3. White contends that the trial court erred in denying his request for severance and trying him together with his co-defendant, Newton. We disagree.
In a case such as this, involving a felony less than capital, the question of whether to sever the trials of co-defendants lies within the sound discretion of the trial court,18 and absent an abuse of that discretion, the trial court's ruling on this issue will not be disturbed. 19 The following factors are to be considered by the trial court in exercising its discretion: (1) Will the number of defendants create confusion as to evidence and law relating to each separate defendant? (2) Is there a danger that evidence admissible against only one defendant will nevertheless be considered against the other, despite the court's instructions? and (3) Are the defenses of either defendant antagonistic to the defenses, or the rights, of the other? 20
Here, there was no danger of confusion because only two defendants were on trial, in connection with the same occurrence. There was no evidence admissible against White that was not admissible against Newton.21 White contends that the evidence against Newton was so overwhelming as to create a “spillover” effect on the jury, to the prejudice of White. However, this contention does not find support in the record.22 Lozano testified that he dealt directly with White in setting up the drug deal; that White took part in the drug deal; and that White tried to rob...
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