Roberts v. State

315 Ga. 229

880 S.E.2d 501

ROBERTS

v.The STATE.

S22A0420

Supreme Court of Georgia.

Decided: November 2, 2022

Debra Kay Jefferson, P.O. Box 1473, Lawrenceville, Georgia 30046, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Parisia Faith Sarfarazi, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Patsy A. Austin-Gatson, District Attorney, Christopher Mark DeNeve, A.D.A., Lee Franklin Tittsworth, A.D.A., Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, for Appellee.

Pinson, Justice.

Melvin Roberts was convicted of malice murder and other crimes in connection with the shooting death of Jabari Pettway.¹ On appeal, Roberts contends that the trial court erred in admitting evidence of an armed robbery he allegedly committed nine days before the murder. That evidence included a shell casing that testing showed was discharged from the same gun as casings from Pettway's murder, as well as testimony from the armed-robbery victim identifying Roberts as the one who possessed, shot, and left with the gun. The trial court admitted all of the armed-robbery evidence under OCGA § 24-4-404 (b) ("Rule 404 (b)") for the purpose of proving Roberts's identity as the murderer.

We affirm on a different legal basis. A limited portion of the physical evidence and testimony from the armed robbery placed the murder weapon in Roberts's hands just nine days before Pettway's murder. That limited evidence was not subject to Rule 404 (b) because it was admissible as evidence intrinsic to the charged crime. The same cannot be said for the armed-robbery evidence as a whole, but any error in admitting evidence of the robbery beyond the intrinsic portion was harmless, because the evidence against Roberts that was properly admitted was quite strong, and the court's limiting instruction about the armed-robbery evidence mitigated the chance that the jury considered the extraneous details of the robbery.

1. Facts

(a) Around 7:30 p.m. on November 1, 2016, 23-year-old Jabari Pettway left the Duluth apartment he shared with his brother, Marqueze Marshall, in his 2012 silver Dodge Avenger. Marshall testified that his brother was going to meet a friend and that he left carrying a red book bag, along with his wallet and cell phone. Later that evening, around 9:55 p.m., Pettway called Marshall to tell him he was on his way home. But Pettway never made it home. The next morning, after trying to reach Pettway, Marshall called their mother, Casandra Mosley, to let her know Pettway was missing.

Mosley testified that Marshall called her around noon on November 2 and told her that Pettway had not come home the night before and had not shown up for work or school that day. After calling local hospitals, Mosley called Pettway's cell phone carrier and got a list of Pettway's recent calls. Mosley and Pettway's sister, Renee Hunter, started calling the numbers on the list, and both eventually spoke to Roberts, whom Pettway had known in high school. Roberts told both Mosley and Hunter that he had seen Pettway the evening before, that Pettway had planned to return to Roberts's home later that night but never did, and that he had not been able to reach Pettway. Later that day, Roberts texted both Mosley and Hunter to say he was "praying for" them.

In the meantime, Gwinnett County police had been called to respond around 8:00 a.m. that morning after the body of an unidentified male was discovered in Snellville on the edge of a Gwinnett County farm abutting Lenora Road. The man was dead, having been shot multiple times in the back. At the scene, investigators recovered five .40-caliber shell casings and two cigarette butts. The cigarette butts were distinctive because they had been smoked past the filter. The victim's left front pants pocket was pulled out, and no car keys, wallet, or cell phone were found at the scene.

The victim of the shooting was later identified as Pettway. The medical examiner testified that he had suffered five gunshot wounds, one to the arm and four to the back, and opined that the manner of death was homicide.

Witness Jimmy Beaver testified that late in the evening on November 1, he was watching the World Series on television at his Snellville home on Lenora Road when he heard a car drive past, heading in the direction of where the paved road turned to gravel. A few minutes later, he heard a single gunshot, followed by a one- to two-second pause, and then four rapid-fire shots. About two minutes after that, he heard a car speed back up the gravel road, hit the pavement, and drive away.

Based on Beaver's report that the shots were fired during the sixth inning of the World Series game, the lead investigator in the case, Corporal Shannon Kulnis, determined that the shooting had occurred between 10:00 and 10:30 p.m. Investigators became interested in Roberts because of his apparent interactions with Pettway just before the murder. Cell-tower records indicated that a phone call Pettway placed at 9:49 p.m. "pinged" from the same cell tower as a call Roberts placed at 9:38 p.m., indicating that they were together shortly before the murder. This cell tower was near the site where Pettway's body was found.

Corporal Kulnis determined that Roberts had an outstanding arrest warrant. After using cell-tower records to locate Roberts, police made a traffic stop, took him into custody, and confiscated his cell phone. An inventory search of his car turned up boxes of Newport cigarettes and a Samsung Galaxy cell-phone box.

(b) At the police station, Roberts waived his rights under Miranda² and agreed to speak with investigators. In the video-recorded interview, Roberts admitted that he had been with Pettway earlier on the night of the murder, but he denied any involvement in the shooting. He admitted that he and Pettway had been intermittent sexual partners over the previous two years. On the evening of the murder, Roberts said, Pettway had come to his home in Lawrenceville, where they "did sexual things." They then left to buy cigarettes, and after that, Roberts said, they parted ways. Roberts said he had expected Pettway to return later that evening, but Pettway never showed up.

Cell-tower records showed Roberts's and Pettway's phones pinging off the same tower near Roberts's Lawrenceville apartment at 7:29 p.m. and at various times until 9:21 p.m. Surveillance video from a Citgo gas station in Lawrenceville showed the pair arriving there at 9:17 p.m., Roberts in his blue Hyundai Sonata and Pettway in his silver Dodge Avenger. The video showed Roberts buying Newport cigarettes and the men then leaving, each in his own car, at 9:21 p.m., both heading in the direction of Snellville.

In his interview, Roberts first told the investigators that after returning from the cigarette run, he had stayed at home the entire evening. He also said he had his cell phone with him at all times that night. Investigators then confronted him with evidence showing that, after the time of the cigarette purchase, both his phone and Pettway's phone were in close proximity, near the crime scene. At that point, Roberts claimed he had been at his grandmother's home, which was near the crime scene. He explained his earlier dishonesty about his whereabouts by saying he just "didn't want to get [himself] involved" in the investigation.

(c) A forensic examination of Roberts's cell phone showed that Pettway's phone number was listed in Roberts's contacts. Also listed in Roberts's contacts was a phone number for a person designated as "Bro"; this number matched the number to which numerous outgoing calls were made from Roberts's phone on the night of November 1 and thereafter, through the early morning hours of November 3. The first of these calls was placed at 10:17 p.m., from a location near the crime scene. The call recipient was determined to be Dawan Glover, who later testified for the State under an immunity agreement.

Glover testified that Roberts called him late in the evening on November 1 and asked to come see him. At the time, Glover was at his girlfriend's home in the Allen Hill apartment complex in southwest Atlanta. Glover agreed, and Roberts drove to Allen Hill, where he met Glover in the parking lot. Roberts told Glover he was "trying to get rid of his car" and offered to pay Glover to help; Glover agreed. Glover testified that he believed there was "an insurance situation" and that Roberts was "just doing it for the money."

Glover testified that Roberts wiped down the inside of the car with cleaning solution, and the pair then left Allen Hill, Glover driving his girlfriend's Chevy Lumina and Roberts following behind. They drove to a gas station, where Glover filled an antifreeze jug with gasoline. The pair then drove to an abandoned lot off of Chappell Road, in the Bankhead area. Glover doused the car with gasoline, lit a T-shirt on fire, and threw the T-shirt inside the car. Once the car began smoking, they drove off in Glover's girlfriend's car and returned to Allen Hill, where Roberts stayed the night. Not sure whether their plan to destroy the car had worked, the pair returned to the Bankhead lot the next evening with more gasoline and, finding the car still intact, successfully set it ablaze.

Glover's girlfriend, Quaneshia Cleckley, also testified for the State. She testified that, late on the night of November 1, Glover asked to borrow her car, and she saw Glover leave the apartments with a man—whom she identified at trial as Roberts—following in a different car. When they returned about 30 minutes later, Glover asked if Roberts could stay the night, and she agreed. She recalled that Roberts had with him a red or pinkish book bag, which he kept close to him while he slept, "[l]ike, if he wanted to get up and run, he was grabbing that book bag and everything was going with him."...