Eleby v. State

903 S.E.2d 64

ELEBY

v.The STATE.

S24A0129

Supreme Court of Georgia.

Decided: June 11, 2024

Superior Court, Lamar County, Thomas H. Wilson, Judge

Kimberly Laverne Copeland, Kimberly L. Copeland & Associates, LLC, P. O. Box 1091, Jesup, Georgia 31598, for Appellant.

Jonathan Lang Adams, District Attorney, Dorothy Vinson Hull, A.D.A., Jessica Brooke Haygood, A.D.A., Towaliga Circuit District Attorney’s Office, 137 L. Cary Bittick Drive, Forsyth, Georgia 31029, Patricia B. Attaway Burton, Deputy Attorney General, Clint Christopher Malcolm, Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Elizabeth Haase Brock, Assistant Attorney General, Christopher M. Carr, Attorney General, Mary Catherine Norman, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, for Appellee.

Boggs, Chief Justice.

Appellant Lekievius Eleby challenges his 2012 convictions for felony murder and other crimes in connection with a home invasion that resulted in the death of Danavan Bus- sey¹ Appellant contends that the evidence was legally insufficient to support his convictions because the, identifications of Appellant as one of the participants were not reliable; that the indictment was multiplicitous; that the trial court abused its discretion when it excluded evidence of past recollection recorded; that the trial court erred in failing to grant Appellant’s motion to suppress certain pretrial and trial identifications; that the trial court committed plain error when it allowed a GBI agent to give her opinion about the meaning of certain text messages; that Appellant’s sentences for the aggravated assaults of Holmes and Johnson should have merged with each other or with the armed robbery offense; that the conspiracy to commit armed robbery should have merged with the conviction for armed robbery; that the possession offense should have been merged with felony murder; that the prosecutor made improper and prejudicial comments in his closing argument; and that his trial counsel was constitutionally ineffective for failing to make certain objections at trial. For the reasons that follow, we vacate Appellant’s convictions and sentences for armed robbery and conspiracy to commit armed robbery. Appellant’s remaining claims are not preserved for appeal, are without merit, or do not require reversal.

1. The evidence presented at trial showed that the victims—Bussey, Holmes, and Johnson—were friends who attended Gordon College together and lived in a house on Westchester Drive in Barnesville in December 2010. Appellant also lived on Westchester Drive. Johnson testified that he knew Appellant from "hanging around Barnesville" and that, although he did not "hang out" with Shameik Spinks,² he had "seen him around." Likewise, Holmes testified that he had met Appellant at a club, had seen him around Gordon College and also knew him from the Westchester Drive neighborhood, but that, at the time of the crimes, he did not know his last name.

Before the crimes, there had been animosity between the victims and Appellant, with the victims thinking that Appellant had twice broken into their home. In September 2010, Bussey, who was with Johnson, confronted Appellant, who was with his cousin Spinks, about the break-ins. According to Johnson, this led to a fight between Bussey and Appellant, with Spinks also "trying to jump on [Bussey]." Johnson added that Bussey and Appellant threw some punches at each other and the fight "just ended." In addition, on the night of December 4, 2010, one night before the crimes at issue here, when the victims were driving down Westchester Drive, they saw Spinks walking down the street, pulled up next to him, and "had a couple of words with him." Holmes testified that he asked Spinks about the fight with Bussey and that Spinks replied that he was "not going to fight," "I’m going to shoot." The victims drove away.

In the early morning hours of December 5, 2010, the victims were having a party at which a few other people, including Diamond Rhodes and Keitrae Battle, were present. Rhodes and Bussey were friends, having met at Gordon College, and Battle knew Bussey through a mutual friend. Rhodes and Battle both testified that they regularly socialized at Bussey’s house. At trial, Johnson testified that he heard a knock on the door and opened it. He testified that "all [he] remembered [wa]s a gun in [his] face and they came in." When asked "how many people came in," Johnson said, "[i]t was three guys. One stood at the door. Lekievius and Shameik, they came in." Johnson added that he recognized Appellant and Spinks even though they had their faces partially covered from the mouth down. Appellant was armed with a handgun, and Spinks was armed with a shotgun. When Appellant and Spinks came into the house, "they asked for money and whatever was valuable." According to Johnson, Appellant went to the living room where Holmes was sitting and had him bend over a table. Bussey then came from the back of the house and tried to talk to the intruders. Bussey approached Spinks and attempted to take the shotgun from him. The two men struggled for it, then "a shot [went] off," and Bussey fell to the floor. After the shot was fired, Appellant and Spinks "were still demanding … stuff." Spinks took Johnson to Bussey’s room and Appellant took Holmes to Johnson’s room. Johnson found Rhodes’s handbag in Bussey’s room and gave it to Spinks. Shortly after that, Appellant and Spinks left. At trial, although Johnson identified Appellant as one of the intruders in the house that night, he acknowledged that, when he was first interviewed by the police, he did not say that Appellant was present during the crimes. According to Johnson, at the time of the interview, he had "just witnessed the murder of my best friend," and "my mind was elsewhere." Johnson testified that the crimes lasted five to ten minutes.

Holmes’s testimony tracked that of Johnson, and he added that Appellant came into the house with his hoodie pulled up to his mouth but that Appellant let his hoodie slip down, allowing Holmes to see his entire face. Holmes added that the other person had a bandanna covering his mouth but not the rest of his face and that he recognized that person as Spinks. According to Holmes, Appellant was carrying a revolver, and Spinks had a shotgun. Holmes also acknowledged that, in an interview with the police, he was shown a photograph only of Appellant, but added that the photograph "just confirmed [Appellant’s] name" and did not "suggest to [him] that that night it was Lekievius."

When Battle heard intruders come into the house, she hid in the bathtub. However, once she heard shots, she tried to exit the house through the front door but was stopped by one of the intruders and stayed near the front door until she saw the three intruders exit the house and walk around the left side of it.

According to Smith, who lived in the neighborhood, he, Appellant, Spinks, and some other people were at the home of Ardrana Pate on the night of the crimes. Smith added that he had been friends with Appellant since he "was young"; that he had known Spinks since the summer of 2010; and that he had met Bussey "through [Appellant]." Smith added that he left Pate’s house between midnight and 1:00 a.m. and that Spinks later texted him, asking him "to hit a lick," which Smith said meant to commit a robbery. Smith agreed and went outside his house to smoke a cigarette. He then saw Spinks and Appellant "coming down," with Appellant carrying a handgun and Spinks carrying a shotgun. Smith, who testified that he did not have a weapon, "jumped off [his] porch" and the men "ran over to the [victims’] house." According to Smith, Appellant and Spinks knocked on the door, and when someone answered, Appellant and Spinks went into the house. Smith heard Bussey trying to "calm everything down," but, he added, "they started tussling." Smith then heard two shots; "[t]he first one was kind of loud, but the second one was very loud." Smith did not see who was shot, and he then ran to his driveway, from where he saw Appellant and Spinks running. He saw Appellant and Spinks go by a neighbor’s house, and "then [he] saw a person throw a shotgun over the fence." On cross-examination, Smith acknowledged that he had given "different versions" of the events of that night in interviews with law enforcement officials. Among other versions, Smith told officers that he thought Spinks and Appellant were the perpetrators, but that it was just a "guess" and that he was home in his kitchen when he heard gunshots; that Spinks, Appellant, and a man named Kellius Collier committed the crimes and that he was at home and saw "the whole thing out of [his] window"; that he was on his porch when he saw Spinks, Appellant, and an unspecified third person commit the crimes; that he did not know anything about the crimes; and that he participated in the crimes by standing in the doorway of the victims’ house. Smith testified that he had given these different versions because "[he] was scared. It was [his] first time ever [to] be in trouble."

Ardrana Pate, who lived near the victims’ home, testified that she knew Smith and Appellant and had met Spinks. She also knew the victims. Pate testified that on the night of December 4-5, 2010, Appellant, Spinks, Smith, and Ashley Parker came to her house. Smith was the last to arrive, shortly after midnight. She added that she overheard the group "jokingly saying that [it] would be a sweet lick" to rob the victims’ home and that Appellant asked Spinks to let him "see the piece." According to Pate, Spinks had a small backpack and Appellant "thought that the gun was in it and it actually wasn’t. [Spinks] said … [he] moved it." She added that they left her house about 1:30 to 1:45 a.m, on December 5. Similarly, Ashley Parker, who knew Appellant, Smith, and Spinks, testified that she was at Pate’s house with the three men and then...