Frazier v. State

309 Ga. 219

845 S.E.2d 579

FRAZIER

v.The STATE.

S20A0088

Supreme Court of Georgia.

Decided: June 29, 2020

Stanley W. Schoolcraft, Office of the Public Defender, 289 Jonesboro Road Suite 245, McDonough, Georgia 30253, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Meghan Hobbs Hill, Christopher M. Carr, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Paul L. Howard, Lyndsey Hurst Rudder, Mathew Eli Plott, Office of the Fulton County District Attorney, 136 Pryor Street SW Third Floor, Atlanta, Georgia 30303, for Appellee.

McMillian, Justice.

Appellant Damon LeShane Frazier was convicted of malice murder and related offenses arising out of the shooting death of Corey Damond Echols.¹ On appeal, Frazier contends that the evidence against him was insufficient, that the trial court erred by allowing the State to present evidence under OCGA § 24-4-404 (b), and that trial counsel was ineffective for failing to request a charge on a justification defense. Finding no error, we affirm.

1. Construing the evidence in the light most favorable to the verdict, the record shows that on the evening of April 29, 2015, Echols was sitting in his car on Kipling Street in the Thomasville Heights community in Atlanta. Echols had just finished a telephone conversation with his wife when a white Ford Crown Victoria with darkly tinted windows² and black wheels approached from the opposite direction and pulled alongside Echols’ car. Numerous shots were fired from the driver's side of the car, which then sped away.

Echols was found slumped over inside his car and appeared to be bleeding from his head. He was transferred to a hospital where he eventually died of a gunshot wound to the head. Echols was later found to have sustained other wounds consistent with a bullet traveling through a car window before hitting him. His car had multiple bullet holes, including a hole in the front window on the driver's side, and a bullet jacket³ was later found inside the doorframe of Echols’ car after a police investigator "took the vehicle apart."

When police arrived on the scene, witnesses provided a description of the car, although they were not able to identify the shooter. The car's description was relayed over the police radio. Minutes later, an officer in a marked patrol car near the crime scene spotted a car matching the radioed description of the Crown Victoria and attempted to initiate a traffic stop. The driver sped away, leading police on a high-speed chase, reaching speeds up to 100 mph, and eventually evading the pursuit. Shortly thereafter, a white Crown Victoria with darkly tinted windows and black wheels was reported wrecked and abandoned in a wooded area behind a house near where police lost sight of the car during the chase. A witness who reported the crash to police observed a man in a yellow shirt running from the car.

An initial search of the abandoned Crown Victoria found an SKS rifle and a Daisy BB gun. A subsequent search pursuant to a warrant located three 9mm shell casings, seven .223-caliber shell casings, a wig, and numerous items linked to Frazier, including a tequila bottle with Frazier's fingerprints and DNA on it and a Walmart receipt.⁴ While attempting, through the use of police canines, to track the man seen fleeing the car, officers discovered a discarded Bushmaster rifle. Frazier's fingerprints were found on the rifle, and it was later determined that six of the seven .223-caliber shell casings discovered in the Crown Victoria had been ejected from that firearm, showing that the Bushmaster rifle had been fired at least six times and raising an inference that it had been fired from inside the car. Bullet fragments taken from Echols’ skull were so damaged that the firearms examiner could not conclude whether the fragments had been fired from the Bushmaster rifle, although the examiner was able to determine that they could not have come from the SKS rifle⁵ or from the same firearm as the bullet jacket found in Echols’ car.

Cellular-tower records admitted at trial showed that a cell phone Frazier was using (under an alias) was in the area where Echols was shot at the time of the shooting and then "pinged" other towers along the route of the high-speed chase. Law enforcement also learned that the white Crown Victoria had been rented by a third party for Catherine Johnson, Frazier's girlfriend and the mother of his child, and that she had loaned him the car on the day of the murder.

Johnson testified at trial that she met Frazier earlier on the day of the shooting to exchange cars, giving him the white Crown Victoria with the darkly tinted windows and taking the car Frazier was driving, a white Crown Victoria with clear windows. Frazier was wearing a gold or yellow shirt at the time he borrowed the car. Later that evening, Johnson received a call from Frazier asking her to come get him. When she picked him up, he was bleeding and carrying a yellow shirt. Johnson testified that, when she asked what had happened, Frazier reported that a gun sale had gone wrong, that he had been pistol-whipped, and that the rental car had been stolen.

After Frazier was arrested in connection with Echols’ shooting in June 2015, he made several statements to police. He first denied that he was ever in the Crown Victoria that was seen at the crime scene and later abandoned, but when he realized that police knew Johnson had rented it, he told them he may have been in the car. Frazier also denied that he had ever touched the Bushmaster rifle.

At trial, Frazier testified in his own defense. He told the jury that around the time of the murder, he was in the area of the shooting in the Crown Victoria with tinted windows for a planned meeting to sell the Bushmaster rifle, which Frazier admitted belonged to him and he had placed in the car. Frazier stated that when he arrived at the sale location, he was carjacked by two masked men, one who got in the front passenger seat and another man who sat behind the driver's seat. They forced him at gunpoint to drive to Kipling Street, where they told him to roll down his window, and one or both of the carjackers shot at a black car through the driver's window, but Frazier did not see what happened because he ducked down as soon as he heard the gunshots. Frazier explained that he fled at the instruction of the carjackers and drove until he wrecked the car. At that point, the two masked men took off running, as did Frazier, who ran through the wooded area to a nearby flea market where he called Johnson to pick him up.

The State presented evidence that, in 1998, Frazier was charged with homicide in connection with a 1997 shooting death in the same area of Atlanta. Frazier admitted that he shot the victim in that case, Corey Lundy, and later pleaded guilty to voluntary manslaughter, although he asserted the shooting was in self-defense. Frazier also admitted that he was on first-offender probation at the time Echols was shot and he was not legally permitted to have any firearms.

Frazier asserts that the evidence was insufficient to support any of his convictions, except the charge of possession of a firearm by a first-offender probationer,⁶ because the State's case was entirely circumstantial and the proved facts did not exclude every other reasonable hypothesis except his guilt. He notes that none of the other witnesses could identify the shooter and that as the only witness inside the car, his testimony that he had been carjacked by two masked men, one of whom was the shooter, presented a reasonable hypothesis not excluded by the evidence.

In considering the sufficiency of the evidence as a matter of due process, we consider whether the evidence presented at trial, when viewed in the light most favorable to the verdicts, is sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "We leave to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts." Smith v. State , 308 Ga. 81, 84 (1), 839 S.E.2d 630 (2020).

As an initial matter, this was not a purely circumstantial case as to the charge of possession of a firearm by a first-offender probationer because Frazier admitted at trial that he was in the vicinity of where Echols was shot to sell the Bushmaster rifle, which he had placed in the car, and possession of the rifle is a "main fact" of the charge. See Muckle v. State , 302 Ga. 675, 679 (1) (b), 808 S.E.2d 713 (2017) (admission that defendant was a party to the attempted robbery that resulted in the victim's death was not a "mere incriminating admission but a confession" that is direct evidence of his guilt (citation and punctuation omitted)); Merritt v. State , 292 Ga. 327, 329 (1), 737 S.E.2d 673 (2013) (because defendant admitted "main fact" of the crime of which he was convicted, this was not a purely circumstantial case). Because the State produced evidence from which the jury could find that Frazier was a first-offender probationer at the time of his offense and Frazier also admitted that he was on probation, we conclude that the evidence was sufficient to support this conviction.

As to the remaining charges, we conclude that the evidence at trial was sufficient to support his convictions even if the State's case is considered wholly circumstantial. "[T]he fact that the evidence of guilt was circumstantial does not render it insufficient." Carter v. State , 305 Ga. 863, 867 (2), 828 S.E.2d 317 (2019) (citation and punctuation omitted). Rather, under OCGA § 24-14-6,

in order to convict [Frazier] of the crimes based solely upon circumstantial evidence, the proven facts had to be consistent with the hypothesis of his guilt and exclude every reasonable hypothesis save that of his guilt. Not every

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