Morrell v. State

313 Ga. 247

869 S.E.2d 447

MORRELL

v.The STATE.

S21A1273

Supreme Court of Georgia.

Decided: February 15, 2022

David T. Lock, David T. Lock, LLC, P.O. Box 14286, Savannah, Georgia 31416, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Kathleen Leona McCanless, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Shalena Cook Jones, District Attorney, Bradley Robert Thompson, A.D.A., Eastern Judicial Circuit District Attorney's Office, 133 Montgomery Street, Suite 600, Savannah, Georgia 31401, for Appellee.

Peterson, Justice.

Karonta Morrell was charged with 21 counts in connection with the murders of Rocquan Scarver and Jonathan Lang. Prior to trial, the trial court granted Morrell's motion to sever the counts related to Scarver's murder from the counts that were related to Lang's. Following a jury trial, Morrell was found guilty on all charges related to Scarver's murder.¹ On appeal, Morrell argues that the trial court erred in admitting hearsay evidence under the forfeiture-by-wrongdoing provision of OCGA § 24-8-804 (b) (5) ("Rule 804 (b) (5)"), admitting other-acts evidence of witness intimidation connected to Lang's murder under OCGA § 24-4-404 (b) ("Rule 404 (b)"), and denying his motion to remove a juror whom Morrell claims was not impartial. We affirm because the trial court did not abuse its discretion in admitting the hearsay evidence; it did not abuse its discretion in admitting the other-acts evidence of witness intimidation; allowing the references to Lang's murder was error but harmless; and the trial court did not abuse its discretion in denying Morrell's motion to excuse the challenged juror.

Morrell was a member of the Crips gang. On December 10, 2015, Scarver, who was associated with the rival Bloods gang, was killed in an apparent gang-related shooting. Police interviewed witnesses in response to the shooting. Martita Harris and David Jackson, eyewitnesses and cousins of Morrell, identified Morrell as the shooter. Harris said that, after shooting Scarver, Morrell fled the scene in a grey vehicle with a black bumper that Harris identified as belonging to Valencia Allen. Morrell fled with "Beefy," whom Harris identified as Allen's boyfriend. Morrell was not apprehended until several months later, when he was arrested for killing Lang.

About two weeks prior to Morrell's July 2019 trial, the State moved under the forfeiture-by-wrongdoing provisions of Rule 804 (b) (5) to admit into evidence Jackson's recorded out-of-court statements to police. The State argued that Morrell had intimidated witnesses in the Lang murder case and had also caused Jackson to be unavailable in this case.

The trial court took up the State's motion on the first day of trial. The State proffered that Jackson, who was not present, had been served with a subpoena and that Morrell was responsible for Jackson's absence. The State played recordings of phone calls in which Morrell talked about paying someone off, needing a "b*tch" to disappear, and having destroyed evidence. The State proffered that Morrell was referring to an eyewitness to the killing of Lang and that the police had moved that witness for her safety after hearing Morrell's recorded call.

The State argued that Morrell was attempting to intimidate witnesses in this case as well, proffering that after he was provided with unredacted discovery, his cousin, Celeste Gaines, posted on her Facebook page the names and identifying information of several witnesses in this case, including Jackson and Harris. According to the State, the witnesses started receiving threats after Gaines's Facebook post, and Gaines pleaded guilty to ten counts of intimidating witnesses in this case, including Jackson and Harris.

Morrell argued in response that Jackson had cooperated with the State before, the State had not shown due diligence in attempting to secure his attendance, and there was no evidence that his absence was due to any of Morrell's actions. Morrell asked the trial court to deny the State's motion but issue a material-witness warrant for Jackson. After hearing the parties’ arguments, the trial court ruled that Jackson's recorded out-of-court statements fell within Rule 804 (b) (5) and were therefore admissible, and it also signed a material witness warrant for Jackson in an attempt to secure his testimony.

At trial, Harris testified that Morrell and Beefy were standing on a street corner when Scarver threw up a gang sign that angered Morrell. Morrell then snuck up behind Scarver, shot him in the back of the head, and fled with Beefy in Beefy's car. Harris admitted on cross-examination that her testimony was different from her statement to police, in which she said that Morrell shot Scarver in the face. Allen testified that her boyfriend, Charles Steplight, was known as "Beefy" and that she owned a silver car with a black front bumper.

Allen confirmed that, at the time Scarver was killed, she owned the vehicle that Harris had previously identified as the getaway car. Allen said that she was living with Steplight at the time of Scarver's death, they lived a few blocks away from the murder scene, and Steplight had access to her car keys. Allen confirmed that Steplight and Morrell were friends.

During a break in the trial, the State informed the trial court that investigators could not locate Jackson, but that after Jackson learned of the material-witness warrant, he had called the prosecutor's office and stated that he would not appear in court. The State played a recording of that phone call for the court, and that recording was later admitted into evidence and played for the jury. In that call, Jackson was reminded of the court order for his appearance at trial, but said that he could not "go against [his] family" by testifying against Morrell and repeatedly said that he did not want to testify because he would "be putting his life at risk" if he did. An employee of the prosecutor's office tried to convince Jackson to "come in" to see what could be done to keep him safe, but Jackson responded that "y'all cannot save me" and "you cannot help me." Jackson further explained:

[Y]ou're not gon’ be with me when I sleep. You're not gon’ be with me when I [have to] go places. You're not gon’ be there. So how y'all can help? There's no safety. There's no savin’ me, there's nothin’ to save ....

Jackson also said that he was going to "say nothin’ " even if he went to court and did not even want to "show my face in a courtroom."

Through Detective Eric Blaser, the lead detective who interviewed Jackson, the State introduced Jackson's recorded statements to the police made prior to his recorded phone call to the district attorney's office. Those recorded statements revealed the following. On the night of the shooting, Jackson told police that he heard the gunshot and saw Scarver fall to the ground, but did not see who shot him. In an interview several days later, Detective Blaser confronted Jackson with information that Jackson had told someone else that he saw the shooter, and Jackson expressed concern about whether his name would be on any police report, stating that he wanted to remain anonymous and did not want things to "hit the fan." Jackson revealed that he was reluctant to identify the shooter and would not want to testify because the shooter was his cousin; when asked for his cousin's name, Jackson said "Karonta," and he identified Morrell in a photo lineup. Detective Blaser testified that Jackson was reluctant to testify because he was afraid.

Detective Blaser also testified that Gaines pleaded guilty to ten counts of witness intimidation for Facebook postings in which she said she was about "to upload these snitches’ names that's in somebody paperwork," listed Harris's and Jackson's names, and posted a screen shot of a police report that was available only to the parties (including Morrell) and not the public. Detective Blaser testified that there was no evidence that the government provided the information to Gaines. The record shows that Gaines posted the material to her Facebook page on June 7, 2016.

The State also presented evidence under Rule 404 (b) for the purpose of showing Morrell's pattern of witness intimidation that was carried out in this case through Gaines's conduct and that, as a result, demonstrated his consciousness of guilt. The State called the detective who investigated the Lang murder, who testified that a witness had identified Morrell as the person who killed Lang. The detective said he was familiar with witness intimidation in both cases, referred to recorded phone calls that had been admitted, and testified that Morrell had talked about having destroyed evidence in that case. In one call recorded shortly after he was arrested in March 2016, an unidentified woman asked Morrell if he needed her to do something. Morrell referred to a "b*tch" and said she needed to "change her motherf*ckin’ ..." before explaining that she needed to "disappear." The unidentified woman told Morrell, "You don't worry about that, I got you," and, "You don't need to do too much talkin’ over the phone." The detective testified that an eyewitness in the Lang case was relocated for her safety after police learned of Morrell's statement about "making someone disappear" and Morrell's plan to start communicating in ways that could not be monitored. In the final charge to the jury, the trial court instructed the jury that it was to consider this other-acts evidence only as it related to Morrell's plan to intimidate witnesses and not for any other purpose, including whether the evidence showed that Morrell had a propensity to commit certain crimes.

1. Morrell argues that the trial court erred in admitting Jackson's recorded interviews under Rule 804 (b) (5), because the State did not show what efforts were made to locate and produce...