Robinson v. State

308 Ga. 543

842 S.E.2d 54

ROBINSON

v.The STATE.

S20A0265

Supreme Court of Georgia.

Decided: April 20, 2020

Conger & Smith, Gregory Davis Smith, for Appellant.

Bradford Lee Rigby, District Attorney, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, for Appellee.

Peterson, Justice.

Herbert Robinson appeals his convictions for malice murder, armed robbery, and possession of a firearm during the commission of a felony in connection with the death of Michael Moore.¹ He argues that the trial court erred by allowing the State to use two firearms for demonstrative purposes during trial, and by allowing body-camera footage to be shown at trial. He also argues that his trial counsel was ineffective for failing to object to a letter written by Robinson's cellmate being available to the jury for review during deliberations and for failing to object to a visual aid used by the State during closing arguments. Because Robinson has failed to show ineffective assistance of counsel or reversible error by the trial court, we affirm.

Viewed in the light most favorable to the jury's verdicts, the trial evidence showed the following. Moore lived in an apartment with his wife, Dawn, and their two children. He primarily stayed home to watch his two children while Dawn worked, but he earned some money cleaning firearms and repairing cell phones. He owned an AR-15 with a laser scope that he kept in his bedroom and treated "like his baby."

On the evening of August 18, 2016, Keon Wilcox and Robert Murphy were hanging out at a ball field adjacent to their apartment complex when they were approached by Robinson, who was 16 years old. He asked the others to walk with him to "get something fixed," and they agreed; Robinson said their destination was "right up the road," but he did not specify the location. Wilcox and Murphy testified that they did not know where Robinson was leading them. Around 9:00 p.m., the three men walked to the Moores’ home, and Robinson knocked on the door. Dawn opened the door and saw Robinson, with two other young men standing further behind him.

Robinson introduced himself as "Kilo," but Dawn recognized Robinson because he had come by the house a few days prior, introducing himself as "Mookie." Robinson said he needed to talk to Moore, so Dawn went upstairs where Moore was in bed, and told him that someone was asking for him, and that the person said it was important; Moore went downstairs to talk to Robinson.

When Moore came to the door, Robinson took out a small handgun and asked Moore to clean it.² Moore took the handgun back into the house, then went to the bedroom and asked Dawn for his gun cleaning kit. Dawn told him where the kit was, and he left the bedroom and cleaned the gun. When Moore brought the cleaned gun out to Robinson, Moore threw one of the bullets away in the yard because he said the bullet was "bad." Robinson replied, "give my bullet back," and replaced the bullet in the gun before putting the gun in his pocket.

Moore and Robinson talked for a while, and Robinson said he wanted to see Moore's AR-15 to "show my homeboys the beam on the gun." Dawn heard Moore reenter the house and grab something from the bedroom, but Dawn didn't see what was taken.

Moore brought out his AR-15 for Robinson to see, and demonstrated the laser sight on the gun. Robinson asked to use the laser sight, and Moore agreed, handing Robinson the AR-15. Robinson played with the gun's laser sight, shining the light up into the trees. During this time, Murphy stepped to the side of the house to urinate, and Wilcox walked away from the house to look up at the light. Then, Wilcox saw Robinson take the handgun out of his pocket and shoot Moore in the chest. From the bedroom, Dawn heard a loud pop. Robinson said, "I told y'all I'd do this sh*t," as he and the other two separately fled the scene.

As he fled the scene, Robinson called Teresa Porter. During the call, Robinson said, "Teresa, I just killed – I just shot somebody. Can you come pick me up?" Porter declined to do so, because she thought he was joking. But Robinson again said, "I just shot somebody. Don't you hear the sirens?" Even though Porter heard sirens, she didn't believe that Robinson was telling her the truth at that time.

Moore stumbled back into his apartment and fell into the hallway. Dawn came out from the bedroom and saw him lying face down on the living room floor. She called 911 and attempted to render aid, but could not flip him onto his back. Emergency personnel also attempted to help Moore, but he died as a result of the gunshot wound. Dawn realized that the AR-15 was no longer hanging in its usual place on their bedroom wall, so she reported it as missing to responding police officers. In the front yard, crime scene personnel collected a shell casing from a .380 handgun. Crime scene personnel searched the house and surrounding areas, but could not find the AR-15.

Dawn independently searched Facebook to identify the man who was at her door that night. She recalled that Robinson had previously identified himself as Mookie, and found a Facebook profile for "Skoolboy Mookie." She confirmed that the photo depicted the man she saw at her door, and texted a screenshot of the photo to the GBI agent who had interviewed her about the shooting. At trial, Dawn identified Robinson as the man who came to her house the night of the shooting.

After the shooting, Wilcox and Murphy ran. Later that night, Wilcox talked to his mother and then his great-uncle about what had happened. Wilcox's great-uncle, who was in law enforcement, contacted the GBI, and Wilcox went to the police station and gave a statement. Following Wilcox's statement, police made contact with Murphy. Murphy initially denied being present at the shooting, but later admitted that he was there. Both Wilcox and Murphy spoke with law enforcement on the night of the shooting. After speaking with Wilcox and Murphy, law enforcement began looking for Robinson, and located him about a month later in an apartment in Waycross. Robinson was arrested and placed into custody at the Ben Hill County Jail.

While in custody, Robinson approached fellow inmate, Anthony Cobb, seeking legal advice. Robinson introduced himself to Cobb as "the guy that killed that white dude across town." Robinson told Cobb that he and his friends wanted to commit a home invasion, so they went to a home and knocked on the door. He explained that when the "white dude" stepped out on the porch, they began to talk about an AR-15. He told the victim that he didn't believe the gun was real, so the victim brought the gun out and gave it to Robinson to see. Robinson said he refused to give the AR-15 back, he and the victim struggled over the AR-15, and Robinson ultimately shot the victim with his own gun. Cobb talked to law enforcement about this discussion; when Robinson found out, he threatened Cobb's life.

A medical examiner determined that Moore was shot once in the right upper chest just below his clavicle. The entrance wound showed gunpowder stippling, which indicated an intermediate or close-range gunshot, estimated to be two to three feet away from the victim. The medical examiner retrieved a .380 bullet. Besides the gunshot wound, Moore did not have any significant injuries indicating a fight, although he did have some bruising on his arms and legs. Moore's cause of death was determined to be a single gunshot wound to the chest.

1. Robinson does not challenge the sufficiency of the evidence. Nevertheless, as

is our customary practice in murder cases, we have independently reviewed the record and conclude that the evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Robinson 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).

2. Robinson argues that the trial court erred in two respects: (a) by allowing the State to use firearms as demonstrative aids, and (b) by allowing the State to introduce two body-camera videos.

(a) The State's ballistics expert testified that the crime lab determined that the bullet extracted from Moore's body was a .380 metal jacketed bullet that could have been fired from one of six brands of .380 pistols that all generally worked the same way. The expert testified that she did not receive any firearms in this case and that she did not compare firearms to the bullet. The State then presented a .380 semiautomatic pistol and an AR-15 rifle to the jury "for demonstrative purposes only." Robinson objected to the presentation of both guns, arguing under OCGA § 24-4-403 (‘‘Rule 403’’) that the sample guns could mislead the jury into thinking the demonstrative guns were the guns from the crime, when in fact, the actual guns were never recovered. Robinson also argued that the AR-15 demonstration was cumulative because photos of Moore's AR-15 were in evidence. The State responded that the demonstration of the .380 pistol was relevant to show malice aforethought by demonstrating the steps required to insert a magazine, chamber a round, and apply pressure to pull the trigger and fire the gun. The State argued that the AR-15 was relevant to rebut the defense theory that the AR-15 was a fiction in the State's case because the State did not have hard evidence of it. The State argued that the size of the weapon tended to prove that Dawn would have noticed that the gun went missing immediately and that it wasn't the sort of firearm that would have been misplaced or mistaken for a different weapon. Finally, the State argued that demonstration of the differences between the two firearms and the ammunition they both require was relevant to show the jury that the weapons could not have been confused for each other, and the ammunition was not interchangeable.

The court al...