Willis v. State

• Decision Date: 25 October 2022
• Docket Number: S22A0801
• Parties: WILLIS v. The STATE.
• Court: Georgia Supreme Court

315 Ga. 19

880 S.E.2d 158

WILLIS

v.The STATE.

S22A0801

Supreme Court of Georgia.

Decided: October 25, 2022

William Nathan Kelbaugh, The Kelbaugh Firm, LLC, 1800 Peachtree St. NW, Suite 300, Atlanta, Georgia 30309, Matthew Kyle Winchester, Law Offices of Matthew K. Winchester, 1800 Peachtree Street, NW, Suite 300, Atlanta, Georgia 30309, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Parisia Faith Sarfarazi, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Kevin Christopher Armstrong, Senior A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, Lyndsey Hurst Rudder, General Counsel, FSIG, 41 Islanders Retreat, Savannah, Georgia 31411, for Appellee.

Pinson, Justice.

Stephen Willis was convicted along with four co-defendants of crimes arising from the shooting death of Nicholas Hagood.¹

On appeal, Willis contends that (1) the evidence was insufficient to sustain his convictions, (2) the trial court plainly erred by failing to instruct the jury that the testimony of an accomplice requires corroboration, and (3) his trial counsel was ineffective for allowing an exhibit to be introduced that included information about his prior encounters with law enforcement, not requesting a limiting instruction as to how the jury could consider that felony conviction, and failing to move to suppress the search warrant that yielded Willis's phone records.

We conclude that the evidence was sufficient to support Willis's convictions. Further, the failure to give an accomplice-corroboration jury instruction was not plain error, because even assuming the instruction should have been given, the failure to give it was not likely to have affected the outcome of the trial in light of the substantial evidence against Willis. Finally, Willis failed to establish that he received ineffective assistance of counsel at trial. He has not shown that he was prejudiced by the introduction of the exhibit that showed his prior criminal history, and his counsel was not deficient for failing to move to suppress the search warrant because the warrant was supported by probable cause: the warrant application relied in part on a statement from a named informant that was against the informant's penal interest. So we affirm.

1. The evidence at trial showed the following. On April 16, 2014, just after 12:30 p.m., Rayshon Smith was robbed at gunpoint. Smith was outside his cousins’ apartment building in Austell, in Cobb County, when he noticed a car driving slowly past. The car was a silver or gray Ford Taurus with tinted windows, and Smith could see four men inside. Smith then noticed two men walking toward him. One of them came right up to Smith, pointed a gun at him, and went through his pockets while looking him in the eye. The man took Smith's wallet, phone, and keys. The other man also had a gun but did not come as close.

After the men left, Smith went into the apartment building and called the police. He gave the police the number of his phone that was stolen. Later, Smith identified Willis's co-defendant Jeremy Southern in a photo array as the man who had been closest to him during the robbery.

About a half-hour later, at around 1:00 p.m., Joseph James was at home in his apartment in Fulton County, not far from where Smith was robbed. James was looking out the window into the parking lot when he noticed two cars pulling up. One of the cars, which was driven by Hagood, pulled into a parking space. The other car wedged behind it. When Hagood got out of the car, he seemed "out of place" and "slightly disoriented." James saw Hagood and a man with dreadlocks standing next to the car that Hagood had been driving, while a third man remained in that car. Four or five men were in the other car. As James watched, Hagood appeared to check his pockets, and then appeared to mouth "I don't have anything" or "I don't have it" to the man with dreadlocks. The man with dreadlocks appeared to "check" Hagood, "like trying to figure out does he have something." At that point, one of the men from the second car got out, holding a gun, and moved toward Hagood and the man with dreadlocks. Hagood tried to run. James heard a gunshot. The medical examiner testified at trial that Hagood was killed by a gunshot wound to the back.

James called 911 at 1:16 p.m. Later, when shown photo arrays, James identified Southern as the man with the gun and another of Willis's co-defendants, Tavius Bates, as the man with dreadlocks who had been speaking to Hagood.²

Detective Scott Demeester, the lead investigator on the case, arrived at the scene at around 1:45 p.m. Detective Demeester contacted Hagood's wife, who told him that Hagood normally would have a cell phone and a car, neither of which was found at the crime scene. Hagood's wife gave the detective Hagood's cell-phone number and the tag number for his white Toyota Corolla. Detective Demeester put out alerts for both the phone and the car.

At the murder scene, police found a wallet and set of keys belonging to Smith, who had recently been robbed nearby. Detective Demeester contacted Smith and learned that his cell phone had been stolen in the robbery. The detective then subpoenaed the phone records associated with Smith's stolen phone, as well as those associated with Hagood's missing phone.

The records from Hagood's phone showed that after the shooting, at 1:29 p.m., someone sent a text message to Hagood's phone. But that message was not received until 3:10 p.m., indicating that the phone was powered off or otherwise disconnected in the interim.

When Hagood's phone finally received the message, it "pinged" off a cell tower in the area of an apartment complex on Kelly Lake Road in Decatur. The aunt of one of Willis's co-defendants, Octavious Jordan, lived in that apartment complex. Jordan himself was living at a nearby hotel, and Southern lived in the area too. A maintenance man from the Kelly Lake Road apartment complex testified that he had seen Hagood's white Toyota Corolla and the defendants’ silver Ford Taurus parked at that apartment complex later in the week, after the shooting. Hagood's car was eventually recovered in the same area.

The records from Smith's cell phone showed that someone used it several hours after it was stolen to call Metro PCS customer service to unlock it. After it was unlocked, the phone was used to place and receive calls and text messages to and from people the phone had never been used to contact before it was stolen. The new contacts included Jordan's girlfriend, Willis, Southern, and a phone number belonging to the mother of the fourth co-defendant, Demetrius Fortson, who often used his mother's phone. Police searched the phone of another of the new contacts in Smith's phone, Dionte Wooten, and found that Smith's number was saved in Wooten's phone under Jordan's nickname, "Tay Tay."

Jordan and Bates were arrested and interviewed. Portions of their statements were played for the jury. In Jordan's interview, he admitted that he was present at the armed robbery of Smith, that he took Smith's phone (and later sold it), and that he then drove to another location where a "white man" was robbed. Bates, in his statement, admitted that he was present at both the robbery of Smith and the shooting of Hagood. Neither Jordan nor Bates mentioned Willis or any other co-defendant in the redacted portions of their statements that were played at trial.

In the portion of Jordan's interview that the jury did not hear, Jordan identified Willis and the other co-defendants. Using that information, Detective Demeester obtained a search warrant for the cell-phone records of Willis, Southern, Bates, and Jordan, as well as of Fortson's mother. From those records, detectives put together a timeline of the defendants’ whereabouts and phone activities on the day of the crimes.

The cell-phone evidence showed the following. On the morning of the crimes, Willis, Jordan, and Southern were in contact with each other. Jordan and Southern started out in the area of Decatur where they both lived, and Willis started out somewhere west of Stone Mountain. Shortly after 10:30 a.m., Jordan and Southern drove north on I-285 toward Stone Mountain Highway, then east on the highway toward Stone Mountain. Jordan and Southern called Willis at 10:48 a.m. and 10:59 a.m., respectively; all three phones pinged off the same cell tower near Stone Mountain. A little later, Southern and Jordan drove west on the Stone Mountain Highway and south on I-285, heading back the way they had come. (There was no testimony about Willis's phone activity during that period.) At 12:05 p.m., Southern called Fortson's mother's phone while Southern was approaching Fortson's home in southeast Atlanta.

A short time later, just after Smith was robbed, Jordan received a call at 12:37 p.m., and Willis made and received calls at 12:43 p.m. and 12:47 p.m., all in the area of the robbery. Southern's phone pinged off a cell tower in the same area at the same time. Likewise, minutes before Hagood was killed, Willis, Southern, and Jordan all made calls near the murder scene.

The phones went silent for a time after the murder. Then at 1:47 p.m., Willis made a call near Fortson's home. The other four defendants’ phones all pinged off the same cell tower around that time. At 2:11 p.m., Southern called Willis from near Southern's home. All five defendants’ phones pinged off cell towers in the same area that afternoon—as did Hagood's stolen phone, at 3:10 p.m.

Detective Demeester testified that in the six-week period for which he reviewed Willis's phone records, the day of the crime was the only time Willis's phone pinged near either Fortson's home or Jordan's and Southern's homes.

Willis was arrested at the home of his girlfriend in Austell. He was...