Nalls v. State

304 Ga. 168

815 S.E.2d 38

NALLS

v.The STATE.

Baskin

v.The State.

S18A0147

S18A0148

Supreme Court of Georgia.

Decided: June 4, 2018

Steven Eric Phillips, OFFICE OF THE PUBLIC DEFENDER, ATLANTA JUDICIAL CIRCUIT, 100 Peachtree Street, Suite 1600, Atlanta, Georgia 30303, for Appellant (Case No. S18A0147).

Christina Rupp Cribbs, GEORGIA PUBLIC DEFENDER COUNCIL—APPELLATE DIVISION, Tyler R. Conklin, GEORGIA PUBLIC DEFENDER COUNCIL, 104 Marietta Street NW, Suite 600 Atlanta, Georgia 30303, for Appellant (Case No. S18A0148).

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W., 4th Floor Atlanta, Georgia 30303, Arthur C. Walton, A.D.A., FULTON COUNTY COURTHOUSE, 4th Floor, 136 Pryor Street SW, Atlanta, Georgia 30303, for Appellee (Case No. S18A0147).

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W., 4th Floor Atlanta, Georgia 30303, for Appellee (Case No. S18A0148).

Peterson, Justice.

Sean Nalls and Montrella Baskin appeal their convictions for malice murder and other charges stemming from an incident in which William Hughes was killed while attempting to buy drugs.¹

Nalls argues (1) that the trial court erred by failing to limit a jury instruction on justification as applying only to Baskin and (2) that the instruction was an improper comment on the evidence in violation of OCGA § 17-8-57. Baskin argues that the trial court erred in failing to instruct the jury that it was not permitted to find him guilty of murder as a party to a crime if it found that his participation was limited to being an accessory after the fact, resulting in mutually exclusive convictions for murder and hindering the apprehension of a criminal that all must be vacated as void. Because any error in failing to limit the jury instruction on justification to Baskin did not affect the outcome of the trial and because the instruction did not violate the version of OCGA § 17-8-57 in effect at the time of trial, we affirm Nalls’s convictions. And because we overrule our case law that held that murder and hindering convictions are always mutually exclusive, and because the other precedent cited by Baskin does not require the jury instruction he now says should have been given, we find no reversible error on the arguments he raises.

1. The evidence is sufficient to support the convictions .

(a) Evidence presented at trial

In April 2012, Hughes traveled to Atlanta from Kentucky with Tangerella Bobbitt and Ashley Strickland. Hughes called Carla Stevenson, who lived in Georgia and knew a drug dealer named Melvin Baty, and arrangements were made for Hughes to buy $9,000 worth of cocaine from Baty.² Baty’s actual plan was to sell Hughes fake drugs with only a small amount of cocaine mixed in, or "flex."

Baty told only two other people—Nalls and Rontavious Hill, both of whom sometimes stayed with him—about the prospective sale. Baty talked to Hill in attempting to procure the flex from him.³ And Baty told Nalls just before meeting up with Hughes at Baty’s apartment that he "had a play ... to make" but would not need a weapon because he was going to trick the buyer out of his money. Baty told Nalls to come to the apartment so that Baty could repay him $300 he owed. Baty knew Baskin but did not give him advance notice of the planned drug deal.

On April 30, 2012, Hughes, Bobbitt, Stevenson, Strickland, and Baty met at a gas station before driving to Baty’s apartment. After the group entered Baty’s apartment, two other men emerged from inside and fired guns in Hughes’s direction. Hughes returned fire. One of the gunmen, who wore a white shirt and brown or camouflage shorts or pants, took Bobbitt’s purse. The other gunman, who pointed a gun at Strickland, was taller and heavier than the first. This second gunman was "older," in his late thirties or early forties, with what appeared to be some grey in his hair, and was about five feet eleven or taller—a description a detective testified was consistent with being Baskin (who, his lawyer represented in closing, is six feet four inches tall). This second gunman wore a grey shirt and blue jeans.

None of the women got a good look at the faces of the gunmen; Stevenson dropped to her knees and covered her head, Bobbitt was afraid to look lest the gunmen shoot her and did not remember the face of the man who took her purse, and Strickland was afraid to look even at the gunman who pointed a gun at her and could not remember the faces of either man. None of the three women positively identified Nalls or Baskin as one of the shooters, and Baty did not identify the shooters, either. Strickland, Stevenson, and Bobbitt found Hughes outside, badly wounded ; he soon died from his wounds.

One of the gunmen appeared to be limping as the two gunmen left the apartment. A nearby resident saw a bleeding man in a white shirt being helped to a vehicle by a larger man; the resident had not seen the larger man, who also entered the vehicle, walking around the complex parking lot previously. Meanwhile, Baty, who also had been shot, left the apartment and entered a car that Nalls had borrowed from his girlfriend and discovered Baskin at the wheel. Inside the vehicle, Baty also encountered Nalls, who had been seriously wounded by gun shots. Baty and Nalls never discussed how Nalls had been shot. Baty and Baskin did discuss the shooting both then and the following day, and Baskin told Baty to make sure that "everybody knows" that Baty was the victim, as well as warning Baty never to make a "stupid move like that" again.

Later on the day of the shooting, a police officer saw a car matching a description of the one Baskin was driving drop off two men at Grady Memorial Hospital. The officer followed the car and attempted a traffic stop, but the driver fled in the vehicle. The officer pursued the vehicle, then chased the driver on foot after the driver exited his vehicle near Turner Field. The officer’s dash-cam video recording shows the driver wearing a red baseball cap, grey shirt, and blue jeans. After losing sight of the driver, the officer recovered the vehicle, which had blood stains and Bobbitt’s purse inside. A resident of a neighborhood near Turner Field identified Baskin in a photo lineup and in court as a man who tried to push his way into her front door that day, "sweating bullets" and claiming that someone was trying to rob him. When he appeared at the woman’s door, Baskin wore a grey shirt and red baseball cap, and, at 5 foot 2 inches, the woman came up only to Baskin’s chest or collar. He also appeared "older" with some grey hair. Other officers determined that both Nalls and Baty arrived at the hospital with gunshot wounds the day of Hughes’s death. Camouflage shorts were among Nalls’s belongings that officers recovered from the hospital.

Neither Nalls nor Baskin testified at their joint trial. Both stipulated that they were convicted felons. Baskin argued in closing that the State had not proved he ever entered Baty’s apartment, contending that he was merely at Baty’s apartment complex to visit his son and ended up driving Nalls and Baty to the hospital. Nalls also argued that the State had not proved that he was in Baty’s apartment during the shooting and suggested that, if he were there, he was merely present hoping to recover the money he was owed.

(b) Analysis of sufficiency

Although neither Nalls nor Baskin challenges 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.

(i) Nalls

Nalls was one of only two people whom Baty told about the planned meeting with Hughes; police determined the other person was not a suspect. Immediately after the gun battle inside Baty’s apartment, Baty encountered Nalls in a vehicle outside, Nalls having been shot. And Nalls presented at the hospital with clothing that matched a description of that worn by the gunman who demanded Bobbitt’s purse. We thus conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Nalls was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(ii) Baskin

As for Baskin, his appearance is consistent with a physical description of the second gunman. Baskin’s identity as the second gunman also is consistent with the testimony of a resident of Baty’s apartment complex who saw a man helping a smaller wounded man to a vehicle outside the apartment. As confirmed by the Turner Field-area resident, it was Baskin who fled from police after the shooting wearing clothing very similar to the description of clothing worn by the second gunman. The car in which Baskin fled from police contained blood stains and Bobbitt’s purse. Although Baskin was free to argue to the jury that it was mere coincidence that he was at the complex immediately after the gun battle, ready to drive Nalls and Baty to the hospital in Nalls’s girlfriend’s car, the jury also was free to dismiss this possibility as unlikely given all of the evidence presented. Based on the evidence, the jury was authorized to find that Baskin was guilty of the crimes for which he convicted. See Jackson, 443 U. S. at 319, 99 S.Ct. 2781.

2. Nalls’s arguments about the trial court’s...