Bates v. State

896 S.E.2d 581

BATES

v.The STATE.

Jordan

v.The State.

Southern

v.The State.

S23A0881

S23A1225

S24A0055

Supreme Court of Georgia.

Decided: December 19-2023

Superior Court-Fulton County-Rachel R. Krause-Judge

Charles Henry Frier-Attorney at Law-P.O. Box 8783-Atlanta-Georgia 31106-8783-for Appellant in S23A0881.

Patricia B. Attaway Burton-Deputy Attorney General-Paula Khristian Smith-Senior Assistant Attorney General-Christopher M. Carr-Attorney General-Clint Christopher Malcolm-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 Cpunty District Attorney’s Office-136 Pryor Street SW-Third Floor-Atlanta-Georgia 30303-Mathew Eli Plott-Assistant County Attorney-Office of the Fulton County Attorney-141 Pryor Street SW-Suite 4038-Atlanta-Georgia 30303-for Appellee in S23A0881.

Melissa Akins-Georgia Public Defender Council-270 Washington Street-Suite 5198-Atlanta-Georgia 30334-for Appellant in S23A1225.

Patricia B. Attaway Burton-Deputy Attorney General-Clint Christopher Malcolm-Assistant Attorney General-Meghan Hobbs Hill-Assistant Attorney General-Christopher M. Carr-Attorney General-Mary Catherine Norman-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-for Appellee in S23A1225.

Randall Paul Sharp-Sharp Georgia Law Firm-4480 South Cobb Drive-Suite H-#164-Smyrna-Georgia 30080-for Appellant in S24A0055.

Patricia B. Attaway Burton-Deputy Attorney General-Clint Christopher Malcolm-Assistant Attorney General-Meghan Hobbs Hill-Assistant Attorney General-Christopher M. Carr-Attorney General-Eric Christopher Peters-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-for Appellee in S24A0055.

Pinson-Justice.

Tavius Bates-Octavious Jordan-and Jeremy Southern were convicted along with two co-defendants of crimes arising from the shooting death of Nicholas Hagood.¹

In separate appeals-all three co-defendants argue that the evidence was not sufficient to sustain their convictions. In addition-Bates contends that the trial court should have granted a mistrial when a detective testified that Jordan told police he drove "the other subjects" to the crime scenes-which Bates says violated his Confrontation Clause rights under Bruton v. United States-391 U.S. 123-88 S.Ct. 1620-20 L.Ed.2d 476 (1968). And Southern contends that the trial court erred by instructing the jury about conspiracy because there was no evidence of a conspiracy-and by allowing a jailhouse informant to testify because the informant was acting as an agent of the State and he obtained incriminating information from Bates without counsel present.

Each of these claims fails. The evidence was sufficient as a matter of constitutional due process to sustain each of these defendants’ convictions. Bates did not preserve his Bruton claim because he acquiesced to the trial court’s curative instruction and failed to renew his motion for a mistrial after the instruction was given. It was not error for the trial court to instruct the jury about conspiracy because there was at least slight evidence of a conspiracy: the evidence showed that Southern and Bates confronted Hagood while the other co-defendants waited in the car-that the co-defendants left the crime scene together after the murder with Hagood’s stolen car and cell phone-and that the co-defendants were either together or in contact with each other before-during-and after the murder. And the jailhouse informant was not an agent of the State because there was no evidence of an agreement between the informant and the State.

1. Viewed in the light most favorable to the verdicts-the evidence at trial showed the following.

On March 26-2014-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 past slowly. 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 towards 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 police the number of his phone that was stolen. Later-Smith identified 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 and 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 say "I don’t have anything" 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 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. 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-and 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 someone sent a text message to Hagood’s phone after the shooting-at 1:29 p.m. 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. Jordan’s aunt lived in that 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 Rayshon 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 that phone had never been used to contact before it was stolen. The new contacts included Southern-his co-defendant Stephen Willi's-Jordan’s girlfriend-and a phone number belonging to the mother of the other 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. In Jordan’s interview-he admitted 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 he was present at both the robbery of Smith and the shooting of Hagood. Bates claimed that he was texting while the crimes were committed-but his phone records showed no text messages sent of received at that time. Portions of their statements were played for the jury at trial. Neither Jordan nor Bates mentioned any of their co-defendants in the portions of their statements that were played at trial.

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

On the morning of the crimes-Jordan-Bates-Southern-and their co-defendants were in regular contact. Jordan and Southern started out in the area of Decatur where they both lived-and their co-defendant Willis started out. somewhere west of Stone Mountain. Jordan’s and Southern’s phones called each other at 8:53 a.m. and 9:20 a.m.-and Jordan’s and Bates’s phones called each other at 10:19 a.m.-10:24 a.m.-and 10:32 a.m. Bates’s...