Muse v. State

316 Ga. 639

889 S.E.2d 885

MUSE v. The STATE.

Harris v. The State.

Harris v. The State.

S23A0316, S23A0373, S23A0427

Supreme Court of Georgia.

Decided: June 21, 2023

Randall Paul Sharp, Sharp Georgia Law Firm, 4480 South Cobb Drive, Suite H, #164, Smyrna, Georgia 30080, for Appellant in S23A0316.

Patricia B. Attaway Burton, Deputy Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Elaine L. Thompson, Fani T. Willis, District Attorney, Kevin Christopher Armstrong, Senior A.D.A., Michael Scott Carlson, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, for Appellee in S23A0316.

J. M. Raffauf, J.M. Raffauf P.C., 100 Peachtree Street, Suite 1768, Atlanta, Georgia 30303, for Appellant in S23A0373.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Eric Christopher Peters, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Elaine L. Thompson, Fani T. Willis, District Attorney, Kevin Christopher Armstrong, Senior A.D.A., Juliana Sleeper, A.D.A., Michael Scott Carlson, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, for Appellee in S23A0373.

Debra Kay Jefferson, Attorney At Law, P.O. Box 1473, Lawrenceville, Georgia 30046, for Appellant in S23A0427.

Patricia B. Attaway Burton, Deputy Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Elaine L. Thompson, Kevin Christopher Armstrong, Senior A.D.A., Fani T. Willis, District Attorney, Michael Scott Carlson, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, for Appellee in S23A0427.

Boggs, Chief Justice.

Appellants Durell Muse, Darious Harris, and Jujuane Harris, Darious's brother, appeal from their convictions following a joint trial for malice murder and other crimes stemming from the shooting death of Antonio Clements, the shooting of Clements’ girlfriend, Kendra Clopton, and the firing of shots that struck a vehicle occupied by Silento Bell and Yolanda Davis. On appeal, all three Appellants challenge the sufficiency of the evidence to support certain of their convictions; contend that the trial court violated the continuing witness rule by allowing the jury to watch surveillance videos in the jury room during deliberations; and claim that the trial court violated certain of their rights when addressing notes from the jury. In addition, Muse and Darious contend that the trial court erred by failing to exclude evidence extracted from Muse's cell phone; Muse contends that his trial counsel was ineffective in failing to raise a hearsay objection to testimony from a State's witness; Darious and Jujuane contend that the trial court erred in failing to sever their trials; and Darious contends that he is entitled to a new trial because the trial court erred in failing to exclude the testimony of a State's witness and because the State represented during the motion for new trial proceedings that the record was incomplete. ¹

We conclude that the evidence was sufficient to support Appellants’ convictions; that the trial court did not violate the continuing witness rule; that the trial court did not violate rights of Appellants when addressing certain notes from the jury; and that any violation of Appellants’ rights when addressing other notes was harmless. We also conclude that the trial court did not err by failing to exclude evidence extracted from Muse's cell phone; that Muse has failed to establish prejudice on his claim that trial counsel was ineffective in failing to raise a hearsay objection; that the trial court did not abuse its discretion in denying Darious's and Jujuane's motions to sever; that the trial court did not err in failing to exclude the testimony of a State's witness; and that Darious is not entitled to a new trial on the ground that the State represented during the motion for new trial proceedings that the record was incomplete. Accordingly, we affirm Appellants’ convictions.

1. The evidence presented at trial showed the following. On September 23, 2014, Darious and Harris (also known, respectively, as "Diablo" and "Mambo"), along with five other passengers, rode in Darious's tan Chevrolet Tahoe to a gas station at the intersection of Campbellton Road and Stanton Road in Fulton County. At almost the same time, Muse, Tequila Forehand, and Frederick Rosenau arrived at the gas station in Muse's dark blue Chevrolet Impala. While there, Appellants saw a gray car, which they thought was occupied by people with whom they had been feuding. Instead, the car was occupied by Clements and Clopton. Occupants of Appellants’ two vehicles opened fire on the car occupied by Clements and Clopton, killing Clements and injuring Clopton.

More particularly, Clopton testified that, just before the shooting, she and Clements were driving down Stanton Road to the gas station to buy cigarettes before the store closed at midnight. Clopton testified that Clements was driving and that, as they approached Campbellton Road and began turning left into the gas station, a bullet struck her passenger window. According to Clopton, Clements tried to back up but a bullet struck him in the head, and their car stopped. Clopton "crawled behind the car and laid down." In the meantime, shots were still being fired. Clopton added that she was behind the car about 30 seconds and that while she was there, the shots stopped. She then saw a vehicle drive off at a "high rate of speed"; she could not identify the vehicle and was not even "sure [if] it [was] a truck or a car." After the vehicle drove off, she ran to the gas station for help. Clopton could not identify the shooter or the car that she saw drive away from the gas station. A 911 call reporting the incident was made at 11:48 p.m., and law enforcement officers arrived shortly thereafter. Clopton had been grazed by a bullet on the top of her head, and Clements died from the injuries caused by the bullet wound to his head.

Silento Bell testified that at 11:50 p.m. on September 23, 2014, he and his wife, Yolanda Davis, were driving down Campbellton Road and that as they were passing the traffic light at the intersection of Campbellton and Stanton Roads, an "object" hit their windshield and then "a lot of shooting started." He ducked down, "went into defense mode," was "trying to get out of harm's way," and was "trying not to get shot." Once he looked up, he saw a black Impala and a yellow Chevrolet Tahoe, with its lights off, "shoot past" him "at a high rate of speed." He added that both vehicles had come out of the gas station. On cross-examination, when asked how many times he had "actually been shot at," Bell responded that "they wasn't shooting at [him]." Bell also testified on cross-examination that his car was not struck by a bullet but by what he "assum[ed]" was a brick. He added that any bullet holes that the police found in his car were from a previous shooting. However, on redirect, Bell testified that a bullet could have hit the windshield and added that he did not "know what the object was."

Davis agreed with Bell's description of events, but she testified that a bullet and not a brick struck their car, and she described Darious's vehicle as a "white Suburban" instead of a Tahoe. Davis also testified that before the shooting, she saw the Impala parked by a gas pump at the gas station and the Suburban in front of the station. She added that, after the shooting, both vehicles left the gas station at a high rate of speed. Over Jujuane's hearsay objection, Davis testified that, on the night of the crimes, Bell told law enforcement officers the same thing that she did about what happened "in every respect."

The gas station had a video surveillance system that consisted of a number of cameras recording activity at various parts of the exterior and interior of the gas station. A number of video clips from the recording system were played at trial. Appellants do not dispute that Darious's Tahoe and Muse's Impala are depicted in the video clips. Those clips and other testimony at trial showed that, on September 23, 2014, Muse's Impala and Darious's Tahoe arrived at the gas station within a few seconds of each other around 11:43 p.m. Muse's Impala parked at a gas pump on the side of the gas station near the intersection of Campbellton and Stanton Roads, and Darious's Tahoe parked in front of the gas station close to an exit on Campbellton Road. Around 11:45 p.m., Darious got out of the driver's door of the Tahoe and opened the back door on the driver's side. A video clip from inside the gas station showed that Rosenau and Forehand went inside the gas station shortly after 11:44 p.m. and went back outside shortly after 11:45 p.m. While Forehand and Rosenau were inside the gas station, a man, who was not identified at trial, got out of the Impala, opened the trunk, and got something out of it. Forehand approached the Tahoe at 11:45:35 p.m., spoke with Darious and other occupants, and then, at 11:46:13 p.m., walked in the direction of the Impala. Forehand approached the Tahoe again at 11:46:22 p.m., stood by the driver's door, leaned in the driver's door and looked toward the back seat, and then, at 11:46:30 p.m., walked in the direction of the Impala. Immediately after Forehand walked away from the Tahoe, Jeremiah McKenzie, who testified and identified himself in the video clip, approached the Tahoe and spoke with Darious. At 11:46:50 p.m.,...