Lyons v. State

309 Ga. 15

843 S.E.2d 825

LYONS

v.The STATE.

S20A0536

Supreme Court of Georgia.

Decided: June 1, 2020

Christina Michelle Kempter, Kempter Law Group, LLC, 3330 Cumberland Blvd, Suite 500, Atlanta, Georgia 30339, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Darius T. Pattillo, District Attorney, Sharon Lee Hopkins, A.D.A., James Luther Wright, III, District Attorney, Flint Circuit District Attorneys Office, Henry County Courthouse #1, One Courthouse Square, 3rd Floor, Attorneys for the Appellee.

Bethel, Justice.

Joseph Milton Lyons appeals his convictions for the felony murder of Tony Lyons, two counts of aggravated assault, one count of home invasion, and two counts of possession of a firearm during the commission of a felony.¹ Lyons argues that the trial court made numerous errors by: (1) allowing certain state exhibits to go to the jury during deliberations in violation of the continuing witness rule; (2) improperly instructing the jury on aggravated assault; (3) permitting the State to elicit hearsay testimony; (4) admitting photographs of Lyons in possession of a gun; (5) sentencing Lyons on the aggravated assault counts; and (6) admitting gang-related evidence. Lyons also argues that he received ineffective assistance of counsel at trial because: (1) trial counsel failed to object to certain witness statements and (2) trial counsel failed to object to the admission of inadmissible hearsay statements. We agree that the trial court erred in sentencing Lyons for the aggravated assault of Tony (Count 7), and accordingly vacate that sentence. However, with respect to Lyons’ remaining assertions, we affirm the trial court's judgment.

Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial shows that Stanley Babb and Glenn Morgan lived together in a second-floor apartment. Frederick Jackson stayed with them periodically in a spare room. Babb received a pension check for approximately $52,000, which had been paid to him in a lump sum. Babb left a copy of the check sitting out in his living room for some time. Tony, who knew Babb, knew of the payout. Tony's girlfriend, Teisha Harvest, later told investigators that Tony had been planning to rob Babb and discussed his plans with one of his brothers. Harvest testified that she attempted to talk Tony out of the robbery. Tony also discussed Babb's payout with his cousin, Lyons.

On the morning of November 27, 2015, Tony, who was with Lyons, offered Ashley Smith-King, who lived in the apartment below Babb and Morgan, $100 to go knock on Babb's door. Smith-King did so, and after Babb finished speaking with her, he closed his front door but did not lock it. Approximately 10 to 15 minutes later, two masked men forced their way into Babb's apartment.² One of the men placed his hands around Babb's neck, but when Babb called out for Morgan, the men ran away.

Early in the morning three days later, Jackson, who was masked, walked into Babb and Morgan's apartment through the back sliding door and let in Tony and Lyons, who were also masked, through the front door. Babb, who was in the living room of the apartment, stood up, and Tony put a gun to his head. Babb called out for Morgan, who was in the back of the apartment. Morgan came into the living room with a shotgun, and was immediately fired upon by one of the men standing at the front door. Morgan returned gunfire, shooting Tony in the back, killing him. Jackson and Lyons fled the apartment. Police arrived at the scene and discovered Jackson's body behind the apartment complex. Jackson had been shot twice in the head and once in the back. Ballistics analysis of bullets recovered from the apartment and Jackson's body revealed that a 9mm firearm had been used at the scene, and that a different 9mm firearm had been used to kill Jackson.

After the home invasion, Lyons called Kendra Berry, his ex-girlfriend, and told her that he and Tony had tried to rob someone. He said that he had shot at Morgan, and that Tony had been shot by Morgan and did not make it out. He also said that he had fled the apartment. Lyons later left Berry a voicemail threatening to kill her and her family, as well as Morgan, which was played for the jury during Berry's recorded interview.

While incarcerated, Lyons admitted to a fellow inmate, Pierre Holloman, that he had committed the robbery with Tony. Lyons also told his cellmate, Richard Beck, that he had helped plan the robbery and that one of the participants had been shot. Lyons asked Beck whether water would remove fingerprints from a weapon and mentioned dumping "either a 9 millimeter or a Smith and Wesson" into a lake or creek.

1. Although Lyons does not challenge the sufficiency of the evidence, it is our customary practice in murder cases to review the record independently to determine whether the evidence was legally sufficient. Having done so, we conclude that the evidence as summarized above was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Lyons was guilty of the crimes of which he was convicted. See Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also OCGA § 16-2-20 ; Muckle v. State , 302 Ga. 675, 679 (1) (b), 808 S.E.2d 713 (2017).

2. Lyons argues that the trial court erroneously allowed certain state exhibits to be given to the jury during its deliberations in violation of the continuing witness rule. Lyons concedes trial counsel did not object to the trial court's decision, but he argues that it was plain error to allow the following evidence to go out with the jury: (1) the written statement of Jackson's mother (Clentene Holmes) to police (Exhibit 1); (2) video of Berry's interview with police (Exhibit 104); (3) Berry's written statement to police (Exhibit 105); (4) his cellmate Beck's audio-recorded interview with police (Exhibit 108); and (5) surveillance video from the apartment complex (Exhibit 187).

During jury deliberations, the jury sent a note to the trial court saying it "need[ed] exhibit number 1," which was Holmes’ written statement, and the trial court asked the parties how they wanted the court to respond. Lyons’ trial counsel noted that the jury could not have the statement in the jury room because of the continuing witness rule. The trial court responded that the jurors could read it in the courtroom, and Lyons’ counsel agreed. The trial court indicated that it would bring the jurors to the courtroom and explain to them that the jurors could not take the statement with them for deliberations because of the continuing witness rule and the danger of their placing undue influence on the statement, but that they could read it in the courtroom. Lyons’ counsel agreed to this procedure. The trial court then brought the jurors back into the courtroom, explained the continuing witness rule and related concerns to the jurors, and allowed them to take turns re-reading Holmes’ statement. The jury then returned to the jury room to continue deliberating. Lyons’ counsel did not object.

About 30 minutes later, the jury sent another note to the trial court asking to review Berry's and Beck's recorded interviews with police, as well as Berry's written statement and the surveillance video. The interviews and surveillance video were played for the jury in the courtroom and the jury was permitted to re-read Berry's statement in the courtroom. Lyons’ counsel did not object to this.

Even assuming plain error review applies to this claim,³ Lyons’ argument fails.

To show plain error, [Lyons] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted.) Lupoe v. State , 300 Ga. 233, 243 (4), 794 S.E.2d 67 (2016). "Satisfying all four prongs of the standard is difficult, as it should be." (Citation and punctuation omitted.) State v. Kelly , 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011).

The continuing witness rule "regulates which documents or recordings go into the jury room with the jury during deliberations and which ones do not." Clark v. State , 296 Ga. 543, 549 (4), 769 S.E.2d 376 (2015).

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations.

(Citation and punctuation omitted.) Rainwater v. State , 300 Ga. 800, 803 (2), 797 S.E.2d 889 (2017).

However, the continuing witness rule does not prevent "the replaying of recorded statements ... in the courtroom at the jury's request during deliberations." Clark , 296 Ga. at 549 (4), 769 S.E.2d 376. Rather, the continuing witness rule applies to recordings that go back with the jury into the jury room.

The record shows that, during the course of their deliberations, the jury was permitted to re-read Berry's and Holmes’ written statements and re-watch the recorded statements and surveillance video in open court. Lyons does not show by reference to the record that any of the evidence at issue was, at any time, viewed by the jury in the jury room. It follows that there is no error, let alone plain error, with respect to these exhibits. See Broxton v. State , 306 Ga. 127, 135 (3), 829...