Barboza v. State

309 Ga. 319

845 S.E.2d 673

BARBOZA

v.The STATE.

S20A0404

Supreme Court of Georgia.

Decided: June 29, 2020

David D. Marshall, Law Office of David D. Marshall, 2550 Sandy Plains Road Suite 225, PMB 349, Marietta, Georgia 30066, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Matthew David O'Brien, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Joyette Marie Holmes, Amelia Greeson Pray, D. Victor Reynolds, Cobb County District Attorney's Office, 70 Haynes Street, Marietta, Georgia 30090-9638, for Appellee.

Nahmias, Presiding Justice.

Appellant Isadore Barboza was convicted of malice murder and other crimes after he, Renee Harris, and Quondre Bentley committed an armed robbery of Ebone Driskell and Exzavious Brooks in a restaurant parking lot that resulted in the deaths of Bentley and Driskell. In this appeal, Appellant argues that the trial court erred by commenting on Harris's testimony, that the exhibit used to prove Appellant's prior armed robbery conviction should not have been admitted into evidence, and that Appellant should not have been sentenced as a recidivist. He also argues that his counsel provided ineffective assistance by failing to raise these claims at trial. We affirm.¹

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. According to Harris, on the night of October 27, 2013, she drove her boyfriend Bentley and his friend Appellant to Doc's restaurant in Cobb County. Bentley and Appellant planned to rob a "weed man." Bentley had brass knuckles and a gun, and he gave the gun to Appellant. When they arrived at Doc's, they all went inside.² Harris sat away from Bentley and Appellant, eating dinner with someone else. When she was finished around 1:00 a.m., she found the men again. Their plan to rob the "weed man" had not come to fruition, and they were ready to leave. Harris, Bentley, and Appellant got in her car, but a man Harris knew only as "K" then approached the car and tapped on the window. He told Bentley and Appellant that there was a man inside the restaurant with a lot of cash. Bentley and Appellant decided to rob the man. They walked toward the front of Doc's, but did not go inside.

Harris remained in the car, but after a short time Bentley, who apparently wanted more information on their robbery target, sent Harris a text message that said: "Go look and see what he doing. He's to the right and let me know ASAP." Harris sent a text back to Bentley saying, "I don't see anybody to the right." Bentley then sent Harris two more messages, which said, "Go inside," and "He got black and white Reeboks." Meanwhile inside Doc's, Brooks and his friend Driskell were getting ready to leave. Earlier that night, Brooks, who was wearing expensive Reebok shoes, had pulled out about $8,000 in $100 bills and was "flashing it around" to prove that he did not need to pay for his food in advance. Surveillance video from inside Doc's showed that Harris entered the restaurant just as Brooks and Driskell left.

As Brooks and Driskell arrived at their car in the parking lot, they were approached by Bentley and Appellant. Bentley went to the driver side of the car, and at some point, he and Driskell, who was carrying a 9mm handgun, began fighting inside the car. Meanwhile, on the passenger side of the car, Appellant pointed a gun at Brooks and said, "Don't move. Where the money at?" Brooks fought back; he was able to break away from Appellant and run inside Doc's to seek help. At some point during his struggle and run, Brooks heard gunshots.³

During the brief time that Brooks was inside Doc's, Appellant joined Bentley inside Driskell's car; the men then pushed Driskell out and drove away. When Brooks came out of Doc's, he saw Driskell on the ground with her gun nearby. He picked her up and helped her walk a couple steps before she collapsed. The police were called and arrived around 1:15 a.m. Driskell was taken to the hospital, but she could not be revived. She died from a single gunshot wound ; the bullet had entered her back and exited through her lower abdomen.

Harris, who had remained inside Doc's for some time after she could not find the robbery target, left after she heard a gunshot and someone came in and said that a robbery was happening. When she could not find Appellant or Bentley in the parking lot, she called Appellant many times with no answer. Phone records show that Harris called Appellant 13 times between 1:15 a.m. and 1:20 a.m. Appellant called Harris back at 1:20 a.m., but the call lasted only nine seconds. Harris then called Appellant again at 1:20 and 1:21 a.m. The detective who analyzed the cell phone records testified that all of the calls before the call at 1:21 a.m. went to voicemail. The call at 1:21, however, lasted over three minutes, indicating that Appellant and Harris had a conversation. Harris testified that when she was finally able to speak to Appellant, he told her to drive to a different parking lot to meet him.

When Harris arrived there, Appellant, who was still carrying the gun he had at Doc's, came out of the nearby woods alone. Harris asked where Bentley was, and Appellant seemed reluctant to give her a straight answer. He first said that Bentley "told me to leave him" and then that Bentley had been "shot in the leg or something of that nature" and implied that Bentley was "towards an ambulance." Appellant eventually convinced Harris to drive him to meet his sister, who picked him up and drove him to the house in Marietta where he was living. During the drive, Appellant told his sister that he had tried to rob somebody, there had been a shooting, and he killed somebody.⁴

After leaving Appellant with his sister, Harris drove to hospitals trying unsuccessfully to find Bentley. Police officers found Driskell's car about half a mile away from Doc's. Bentley was dead in the passenger's seat. He had been shot in the clavicle; he had an exit wound and a small bullet fragment in his back. He also had abrasions on his knuckles. The police found brass knuckles underneath his body and Driskell's purse on the ground near the car.

The State's firearms examiner could not determine what kind of gun fired the bullet fragment taken from Bentley's back. Driskell's 9mm gun was found lying in Doc's parking lot near her body. It had a spent shell casing inside, meaning that the gun had been fired but malfunctioned and did not eject the shell casing as usual. A spent .380 bullet and a .380 shell casing, both of which had been fired from a Hi-Point gun, were also found in Doc's parking lot.

The night after the shooting, Appellant moved from Marietta to his family's apartment in Augusta. He was located and arrested there three days later, on November 1. He no longer had dreadlocks, but shaved dreadlocks were found in the trashcan inside his apartment. Appellant did not testify at trial. His main defense was that the State had not proven its case because it had no scientific evidence linking him to the crimes and the State's witnesses were not credible.

Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's customary 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 malice murder of Driskell and the other crimes against Driskell and Brooks 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. Harris was indicted with Appellant, but on the first day of their joint trial, before the jury was selected, she pled guilty to armed robbery. The State agreed to dismiss the other charges against her, and Harris agreed to testify truthfully against Appellant. During the plea hearing, the prosecutor asked the court to withhold sentencing until after Harris testified, but the court and the lawyers discussed possible sentences. Harris's counsel said that he would ask the court to sentence her to serve five years in prison. The prosecutor said that if Harris fulfilled her obligation and testified as expected, the State would ask for her to be sentenced to serve 10 years in prison and another 10 years on probation. The court made clear to Harris that the maximum sentence she could receive would be life in prison.

When the trial court turned its attention back to Appellant's trial, the court expressed concern about Harris's name being in the indictment, which could affect voir dire. The court said that it wanted to clarify why she was charged in the indictment but was not on trial. The court then told the first group of prospective jurors:

[T]he indictment that you will have with you will show the State of Georgia versus Isadore Walker Barboza and Renee Elizabeth Harris. And earlier this morning, Ms. Renee Elizabeth Harris, the co-defendant to this defendant, pled guilty to Count 9 of the indictment. And Count 9 ... was armed robbery ....

An[d] in return for this plea of guilty to only one count, that is the armed robbery count, the State and the defense have entered into somewhat of an agreement. First of all, that I will not impose sentencing until this trial is over with, number one. Number two, the State is going to ask that she receive a sentence of twenty years, and of that twenty years, to serve ten years incarcerated. And the defense is going to ask that I give her a sentence of five years to serve.

And part of the plea negotiations was that the defendant, Ms. Harris, would give truthful testimony concerning

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