Agee v. State

857 S.E.2d 642, 311 Ga. 340

• Court: Supreme Court of Georgia
• Decided: April 19, 2021
• Docket: S21A0372
• Status: Published

Opinion

311 Ga. 340 FINAL COPY

S21A0372. AGEE v. THE STATE.

LAGRUA, Justice.

Appellant Derrick Agee was found guilty at a bench trial of

malice murder and other crimes in connection with the shooting

death of Steven Lowe and assault of Monitaaz Simmons. On appeal,

Appellant contends that the evidence was insufficient to support his

convictions because the two witnesses who identified him as the

shooter later recanted their statements. Additionally, Appellant

challenges the validity of his waiver of his right to a jury trial.

Concluding these claims lack merit, we affirm. 1

1 The shooting occurred on December 7, 1997. On August 10, 2001, a Fulton County grand jury returned a six-count indictment against Appellant, charging Appellant with malice murder, felony murder, one count of aggravated assault against Lowe, one count of aggravated assault against Simmons, and two counts of possession of a firearm during the commission of a felony. At the conclusion of a bench trial from February 13 to 14, 2006, the judge found Appellant guilty on all counts. On February 24, 2006, the trial court sentenced Appellant to serve a life sentence for malice murder; 20 consecutive years on the aggravated assault charge against Simmons; and 10 consecutive years for each firearm possession charge. The remaining charges 1. Viewed in the light most favorable to the verdicts, the

evidence presented at Appellant’s trial showed that in the early

morning hours of December 7, 1997, Appellant went to Club Escape

in Fulton County with friends to celebrate a birthday and paid for a

VIP room for the celebration. Appellant arrived with friends in

Appellant’s car, a black Oldsmobile Cutlass with a white top, a

decorative racing stripe, and gold rims. The same night, Lowe, a

former security guard at the club, was fired for carrying a gun inside

the club in direct violation of the club’s policy. However, Lowe was

allowed to remain in the club after being terminated.

merged for sentencing purposes or were vacated by operation of law. The trial court ordered Appellant to serve the sentence in this case after completion of Appellant’s life sentence in a separate murder case. See Agee v. State, 279 Ga. 774 (621 SE2d 434) (2005). Appellant timely filed a motion for new trial on February 27, 2006. In July 2019, the trial court held a status conference, at which the court granted Appellant’s request to have 90 days to consider whether to proceed with the motion for a new trial. At another status conference on October 17, 2019, Appellant, through counsel, requested that the court deny his motion for new trial to enable him to pursue an appeal. The trial court granted the request and denied the motion for new trial on October 31, 2019. Appellant then filed a timely notice of appeal on November 26, 2019, amending it on December 10, 2019. This Court docketed Appellant’s case to the term beginning in December 2020, and the case was submitted for a decision on the briefs. 2 Sometime after Appellant and his group arrived, Reginald

Lindsay, the club’s manager, witnessed a fight break out between

Lowe and a member of Appellant’s group known as “Peanut.” About

a dozen patrons got involved, including some of Appellant’s friends.

Club security escorted Appellant and most of his group out of the

club. Lowe and Peanut were separated inside the club to avoid

further altercations.

Lindsay testified that as he was removing the disorderly

patrons from the club, he heard three gunshots ring out; Lowe had

stepped outside and fired warning shots into the air. Lindsay

demanded that Lowe stop, and Lowe went back inside the club.

Patrons who had left the club following the altercation started

getting back out of their cars and returning to the club. Appellant

confronted Lindsay and demanded a refund for the VIP room.

Lindsay denied the refund and, noting that he was a reserve sheriff’s

deputy, told Appellant to go home. Appellant responded, “No. It

ain’t over. And if you are the police, you better call a thousand more

because we’re about to light this motherf***** up.” Lindsay then

3 testified that he saw Appellant go to an older model car with a stripe

across the hood and heard the trunk open. Lindsay then returned

to the club.

Inside the club, Lindsay discovered Lowe and Peanut in the

lobby; Lowe was upset and still had the gun in his hand. Peanut

and Lindsay began trying to persuade Lowe to release the gun.

Meanwhile, another club security guard came inside and reported

that he saw someone with a gun in the parking lot. Lindsay went to

find a phone to call police, at which point multiple shots rang out in

the lobby. Lowe was shot 11 times and pronounced dead at the

scene; one other patron, Monitaaz Simmons, was shot in the leg, but

survived. The medical examiner testified that Lowe’s cause of death

was multiple gunshot wounds to the back, right arm, and both legs.

When police arrived, cars were fleeing the parking lot.

Eleven days after the shooting, investigators interviewed

Tobias Mathews, a member of Appellant’s group on the night of the

shooting, and he identified Appellant as the shooter in a written

statement to police. According to Mathews’ written statement,

4 Appellant went to his car to get his gun moments after Lowe fired

warning shots. Appellant then went to the entrance of the club,

opened the door with his leg, and shot “[a]bout 17” times into the

club. Appellant shot until he ran out of bullets and, as he was

shooting, shouted “I told you I was going to kill you, motherf*****.”

Mathews and two other members of the group pulled Appellant

away. Appellant jumped into the passenger seat of his car, and the

car sped away. Based on this information, Appellant was arrested

on December 19, 1997.

About four days after the interview with Mathews, police

received a tip about a black Oldsmobile Cutlass with a white top and

white racing stripe, covered by a tarp and parked behind a house.

Police determined that the house the car was parked behind

belonged to Appellant’s mother.

Terence Johnson, who was working in the parking lot when the

shooting occurred, testified that after the shooting, he saw a two-

toned, older model car pulling away.

On April 11, 2001, while Detective Brett Zimbrick was

5 conducting an investigation into a home invasion and shooting that

occurred in Derrick Byrd’s apartment, Byrd, who was a member of

Appellant’s group on the night of the December 7, 1997 shooting,

sought to give Zimbrick information about the club shooting. Byrd

recalled the events of that night and identified Appellant as the

shooter. Byrd stated that after security removed Appellant’s group

from the club, Appellant was upset about how the club security

officers treated him. Then, after Lowe fired the warning shots, Byrd

saw Appellant run to his car and heard, from the direction of

Appellant’s car, a pistol slide being pulled back. Byrd saw Appellant

approach the club with a pistol and fire two rounds at the club door.

Appellant told Byrd to “get away from the door because I am fixin’

to shoot this motherf***** up.” Byrd stated that Appellant emptied

his gun and said, “I am out” before fleeing in his car.

Appellant argues that the evidence was insufficient to support

his convictions because only Mathews and Byrd were eyewitnesses

to the shooting, and at trial, both witnesses recanted their

statements to police identifying Appellant as the shooter. Mathews

6 testified that he did not recall providing a statement to police, that

he did not remember some of the events that were in his statement

to police, and that he did not see a shooter that night. Byrd testified

that the statement he provided to police was “full of lies” and that

he did not see the shooter because he had already fled the scene.

Appellant argues that this evidence was insufficient to prove his

guilt beyond a reasonable doubt. We disagree.

When evaluating the sufficiency of evidence, “the relevant

question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime[s] beyond a reasonable

doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781,

61 LE2d 560) (1979) (emphasis omitted). In this analysis, “we view

all evidence in the light most favorable to the trial court’s verdict,

and the defendant no longer enjoys the presumption of innocence.

We do not re-weigh testimony, determine witness credibility, or

address assertions of conflicting evidence.” Wimberly v. State, 302

Ga. 321, 323 (1) (806 SE2d 599) (2017) (citation and punctuation

7 omitted).

Here, the record shows that Appellant admitted that he was at

the club on the night of the shooting, that he was upset with security

for forcing him out of the club, and that Lowe was one of the people

who angered him. Additionally, after Appellant argued with

Lindsay about a refund, Lindsay heard Appellant threaten to “light

this motherf***** up.” Johnson, the parking attendant employee,

witnessed a two-toned, older model vehicle matching the description

of Appellant’s car screeching away after the shooting. A car

matching that description was later found at Appellant’s mother’s

house, hidden under a tarp.

Moreover, despite their later recantations, Mathews and Byrd

both identified Appellant as the shooter in written statements to

police. Mathews told police that Appellant had gone to his car,

retrieved a gun, and returned to the club where he shot multiple

times through the doorway of the club. Byrd told a similar story

identifying Appellant as the shooter, adding that Appellant was

angry and seeking retribution.

8 Appellant argues that, without the written statements of Byrd

and Mathews, the evidence merely places Appellant inside the club

on the night of the shooting. However, the jury was authorized to

credit these witnesses’ statements to police over their recantations

at trial. See Bullard v. State, 307 Ga. 482, 484-485 (1) (837 SE2d

348) (2019); see also Cartwright v. Caldwell, 305 Ga. 371, 379 (2) (a)

(825 SE2d 168) (2019); Robbins v. State, 300 Ga. 387, 391 (793 SE2d

62) (2016) (“A prior inconsistent statement of a witness who takes

the stand and is subject to cross-examination is admissible as

substantive evidence. . . .” (citation and punctuation omitted)). “The

fact that the [factfinder] resolved the conflicts in the evidence or

credibility for the witnesses adversely to [Appellant] does not render

the evidence insufficient.” Bullard, 307 Ga. at 485 (1) (quoting

Jackson v. State, 306 Ga. 706, 708 (832 SE2d 809) (2019)). We

therefore conclude that the written statements, together with the

other evidence presented at trial, was more than sufficient to

authorize a rational finder of fact to determine that Appellant was

guilty beyond a reasonable doubt of the crimes for which he was

9 convicted. See Jackson, 443 U. S. at 319.

2. Appellant contends that he did not knowingly, intelligently,

and voluntarily waive his right to a jury trial. This argument is

meritless.

The constitutional right to a jury trial may be waived only if

the State proves beyond a reasonable doubt that a defendant did so

knowingly, voluntarily, and intelligently. See Balbosa v. State, 275

Ga. 574, 575 (1) (571 SE2d 368) (2002) (jury trial waiver by defense

counsel in the presence of the defendant was not enough to

constitute the defendant’s own knowing, intelligent, and voluntary

jury trial waiver). The State can do so by either (1) showing on the

record that the defendant was cognizant of the right being waived;

or (2) supplementing the record through the use of extrinsic evidence

which affirmatively shows that the waiver was knowingly,

voluntarily, and intelligently made. See Johnson v. Smith, 280 Ga.

235, 236 (626 SE2d 470) (2006). We review a trial court’s acceptance

of a waiver of a constitutional right for clear error. See Lyman v.

State, 301 Ga. 312, 317 (2) (800 SE2d 333) (2017); Seitman v. State,

10 320 Ga. App. 646, 646 (740 SE2d 368) (2013).

Here, the record indicates that Appellant made a knowing,

voluntary, and intelligent waiver of his right to a jury trial. Before

the bench trial, the following colloquy occurred on the record:

COURT: . . . Well let me — Mr. Agee, I understand that you and — I’m making an assumption, but I want to confirm it, that you and [defense counsel] discussed this matter of you electing to have a bench trial and the pros and cons of doing that. Did you not? APPELLANT: Yes, sir. COURT: Okay. And the law requires that the defendant personally waive the right to a jury trial; because obviously, a jury trial is a constitutional right that everyone has guaranteed to them. Do you understand you’ve got a right to a jury trial if you chose to have one? APPELLANT: Yes, sir. COURT: Okay. And with a bench trial, the court will make the — will be the finder of fact as well as the person that presides over the law, as opposed to in a jury trial, the jury would be the fact-finder and the court would provide the law for the jury. Do you understand the difference in that? APPELLANT: Yes, sir. COURT: All right. And you, in fact, do you want to waive your right to a jury trial and elect to have a bench trial? APPELLANT: Yes, sir.

Appellant argues that this colloquy fails to establish that his

waiver was voluntary or that he understood the ramifications of

11 making such a waiver. We disagree.

When a defendant seeks to waive his or her right to a jury trial,

“[a] trial court should ask the defendant sufficient questions on the

record so that the court can ensure the defendant’s waiver is

knowing, voluntary, and intelligent.” Watson v. State, 274 Ga. 689,

691 (2) (558 SE2d 704) (2002). Here, the trial court asked Appellant

on the record whether he was electing to waive his right to a jury

trial and whether he understood the advantages and disadvantages

of that choice. The court also highlighted the fact that a jury trial

was the Appellant’s constitutional right, and the court made clear

that the judge, not a jury, would be the finder of fact in his case.

Finally, the court confirmed a second time with Appellant that he

wanted to waive his right to a jury trial and elect to have a bench

trial instead. In each instance, Appellant responded that he

understood and was opting to forgo a jury trial. Based on the record,

we conclude that Appellant personally, knowingly, intelligently, and

voluntarily waived his right to a jury trial. See Watson, 274 Ga. at

690-691 (2) (waiver was knowing, intelligent, and voluntary where

12 defendant was asked personally on the record whether he wanted to

proceed with a bench trial, and defendant orally affirmed the

waiver).

Appellant also contends that additional measures should be

taken in order to ensure that a defendant’s waiver is knowing,

intelligent, and voluntary, such as specific inquiries into the

defendant’s education and mental status, or allowing the defendant

the opportunity to watch another bench trial before making a

decision, citing Johnson v. State, 157 Ga. App. 155, 155-156 (2) (276

SE2d 667) (1981) (noting that the trial court inquired into education

and mental status and gave the defendant additional time to

consider the advantages and disadvantages of a bench trial), and

Safford v. State, 240 Ga. App. 80, 82-83 (2) (522 SE2d 565) (1999)

(noting that the trial court gave the defendant the opportunity to

watch a bench trial before proceeding with his own).

However, in both of those cases, the specific inquiries and the

opportunity to observe a bench trial were afforded after the trial

court determined that the defendant knowingly, intelligently, and

13 voluntarily waived a jury trial, and were additional measures that

the trial court elected to provide. Such measures are not

categorically required for a trial court to establish that a defendant’s

waiver is knowing, intelligent, and voluntary. See Brown v. State,

277 Ga. 573, 574 (2) (592 SE2d 666) (2004) (defendant personally,

knowingly, voluntarily, and intelligently waived a jury trial after he

was informed of the various aspects of a jury trial and the

consequences of relinquishing that right, and then “only after

receiving [defendant’s] oral assurance that he wished to waive trial

by jury” (citation and punctuation omitted)). Therefore, we decline

to extend the requirements for a valid jury trial waiver as asserted

by Appellant, the trial court did not clearly err in finding such a

waiver, and this enumeration of error is without merit.

Judgment affirmed. All the Justices concur.

14 Decided April 19, 2021.

Murder. Fulton Superior Court. Before Judge Millender.

Cody J. Jung, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,

Kevin C. Armstrong, Juliana Sleeper, Assistant District Attorneys;

Christopher M. Carr, Attorney General, Patricia B. Attaway

Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney General, William C. Enfinger, Assistant Attorney General,

for appellee.