Hinton v. State

312 Ga. 258

862 S.E.2d 320

HINTON

v.The STATE.

S21A0865

Supreme Court of Georgia.

Decided: August 10, 2021

Nicholas Earl White, 329 Margie Drive, Suite 2D, Warner Robbins, Georgia 31088, Elizabeth Rosenwasser, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Atlanta, Georgia 30303, Joseph C. Timothy Lewis, JCTL Law, 1411 S 4th St, Columbus, Ohio 43207, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, 4th Floor, Atlanta, Georgia 30303, for Appellee.

Nahmias, Chief Justice.

Appellant Lamontez Hinton was convicted of malice murder and other crimes related to the shooting death of Kilon Williams and the armed robbery of Williams's friend Nicholas Gibson. Appellant contends that the evidence presented at his trial was legally insufficient to support his convictions and that the trial court should have granted him a new trial under the "thirteenth juror" standard. Those contentions have no merit, so we affirm Appellant's convictions except for his conviction for the aggravated assault of Gibson, which we vacate because it should have been merged into Appellant's conviction for the armed robbery of Gibson.¹

1. (a) In the unsuccessful appeal of Appellant's co-defendant, Fernando Hogan, we summarized the evidence presented at their joint trial as follows:

Viewed in the light most favorable to the jury's verdicts, the evidence presented at [the] trial showed that, in the early morning hours of July 3, 2014, Williams and Gibson, who were going to a bar, parked their car on a side street near Ponce de Leon Avenue in Atlanta. Gibson began to walk to the bar, while Williams remained in the car to text someone. After Gibson had walked for about two minutes, he saw a man standing on the street apparently directing someone who was trying to park his car. But the parking job was a ruse, and the man who appeared to be directing the car pulled a gun on Gibson and told him to strip down to his underwear. Gibson did so, leaving his wallet, watch, glasses, cell phone, and clothes on the ground. The driver then got out of the car and picked up the items. The armed man told Gibson to run, and Gibson began to walk away quickly. The armed man then got into the car, and the occupants of the car drove to where Williams was parked. The armed man jumped out of the car, shot Williams several times, [killing him], and got back into the car. The occupants of the car then sped off.

At trial, Gibson identified the driver as Hogan and the armed man as ... [Appellant]. Evidence was introduced that, after Gibson's phone was stolen, multiple calls were placed to a phone number belonging to Hogan's cousin, Lanquesha Washington. The evidence showed that on the morning of July 3, Hogan called Washington from a phone number that Washington did not recognize. Hogan, sounding scared, told her that he and [Appellant] had been in an altercation, saying that they had robbed someone or had been the victims of a robbery. According to Washington, Hogan added that a shooting had occurred and that he thought someone might have died. Later in the day on July 3, Washington went to her mother's house, where Hogan lived, and talked with Hogan there. Washington saw Hogan with a black wallet that did not belong to him and overheard Hogan on the phone sounding as though he was trying to transfer money from different cards or accounts. Hogan later texted Washington, saying that he thought someone might have died, and later told her that he was watching the news and saw reports of the incident.

Hogan v. State , 308 Ga. 155, 155-156, 839 S.E.2d 651 (2020).

The following trial evidence is also pertinent to this appeal. After seeing Appellant shoot Williams, Gibson unsuccessfully tried to flag down a passing driver to help Williams; the driver testified about being stopped by a man wearing only underwear and socks. Gibson, who had recently been released on parole related to his conviction for a bank robbery, then got scared and fled on foot to his aunt's house a few miles away; he told her that Williams had been shot. Gibson did not call 911, but the following day, he met with a detective to discuss the incident. Gibson told the detective that the two assailants were driving a blue Dodge Avenger. The detective showed Gibson a photographic lineup containing 22 photos (none of Appellant or Hogan), and Gibson identified a man named DeShawn Willis as the gunman. Gibson testified at trial that he was not sure about the identification, however, because Willis had a similar facial shape to the gunman, but a different hairstyle.

After reviewing records for Gibson's stolen cell phone, discovering that it had been used in the area where Hogan had met Washington at her mother's house – which was next door to Appellant's grandmother's house – and speaking with Washington and with Appellant's girlfriend Tiffany Combs, the detective suspected Appellant and Hogan of committing the crimes. On October 8, 2014, the detective showed Gibson two photographic lineups, one including Appellant's photo and the other including Hogan's photo. Gibson identified Appellant as the person who robbed him and shot Williams and identified Hogan as the driver. Gibson testified at trial that he was "positive" about those identifications.

In a redacted version of Combs's audio-recorded statement to the detective that was played at trial, Combs acknowledged that she owned a blue Dodge Avenger and said that Appellant had taken the car on the night of the shooting, after telling her that he and Hogan were "going to be getting into something." Combs also said that Appellant had previously told her that he robs people by acting like he is going to shoot them and making them strip out of their clothes. The State presented evidence that Appellant was previously convicted of burglary. Neither Appellant nor Hogan testified at trial.

(b) Appellant contends that the evidence presented at his trial was legally insufficient to support his convictions because Gibson's identification of him as the gunman was not credible. Appellant points to evidence that Gibson was a paroled bank robber who fled the scene of the shooting, did not immediately call 911, and initially identified someone other than Appellant as the gunman. All of that is true, but in evaluating the sufficiency of the evidence under the constitutional due process standard set forth in Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), " ‘[w]e do not determine the credibility of eyewitness identification testimony. Rather[,] the determination of a witness’[s] credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.’ " Reeves v. State , 288 Ga. 545, 546, 705 S.E.2d 159 (2011) (citation and punctuation omitted). And "[t]he testimony of a single witness is generally sufficient to establish a fact." OCGA § 24-14-8.

Gibson explained to the jury at trial that he was unsure about his initial pretrial...