Bannister v. State

830 S.E.2d 79, 306 Ga. 289
CourtSupreme Court of Georgia
DecidedJune 24, 2019
DocketS19A0418
StatusPublished
Cited by16 cases

This text of 830 S.E.2d 79 (Bannister v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bannister v. State, 830 S.E.2d 79, 306 Ga. 289 (Ga. 2019).

Opinion

Nahmias, Presiding Justice.

**289Appellant Donald Bannister was convicted of felony murder and a firearm offense in connection with the shooting death of Anthony Johnson, Jr. On appeal, he argues that the weight of the evidence presented at his trial was strongly against the verdicts; that his trial counsel was ineffective in withdrawing a request for jury instructions on voluntary manslaughter and mutual combat; and that the trial court erred by denying a mistrial and giving an improper Allen charge after the jury indicated that it was deadlocked, by holding that he had not made a prima facie showing supporting his Batson challenge, and by admitting two recordings of phone calls made from jail. We see no reversible error, so we affirm.1

1. (a) Viewed in the light most favorable to the convictions, the evidence presented at Appellant's trial showed the following. On September 24, 2011, Tyrone Thomas drove Johnson and Terrance Denson to the townhouse where Ricardo Linton lived with his mother. Thomas testified that he could tell by "the way everything was going" and the phone calls that were coming in that Johnson and Denson were going to buy drugs. According to Linton, Johnson had contacted him through a third party to buy two pounds of marijuana for about $ 8,600. Linton called Appellant to supply the marijuana for the deal, which Appellant brought to Linton's house that afternoon in a white Volvo. Linton said the buyers arrived in a green Cadillac.

While Appellant and Linton waited for the buyers, Appellant cocked a handgun and hid it under a pillow in his lap. When Linton asked why he had a gun, Appellant said, "you never know when somebody will try to rob you." After Johnson and Denson arrived at the house, Linton led them in through the garage to his bedroom, which was on the lower level. Johnson pulled out some cash, which did not appear to be the full $ 8,600; he would not let Linton count the **290money, and he asked to weigh the drugs. As Linton was leaving to get a scale, Denson pulled out a *83gun. Appellant lunged at him, and they struggled over the gun. Johnson, who was unarmed, pushed Linton to the floor, then went over to help Denson. Appellant kicked Denson off of him and fired two shots at Johnson, who was hit once in the shoulder and fell down. Appellant moved toward the bathroom while firing at Denson. Once Appellant made it to the bathroom, Denson fled the bedroom.2

Linton's mother, who was on the floor above his bedroom, heard a loud boom; heard Linton say, "leave my mom alone, leave my mom alone"; and then saw a man running up the stairs from Linton's bedroom with a gun. She told him to leave the house. After the man ran outside, she looked out the window and saw a "big green car" she did not recognize parked nearby. She also saw the man who had just left the house still outside, so she hid behind a wall. When she looked out again, the man and the car were gone. Thomas, who had been waiting outside in the car, heard two or three gunshots and then saw Denson run out of the house with a gun. Denson got in the car and yelled at Thomas to drive away.

Linton testified that after Denson left, Appellant, who had injured his finger in the struggle, was angry, saying, "I'm going to kill that motherf**ker." Appellant then gathered his belongings, including the marijuana. On his way out of the house, while still holding his gun, he looked at Linton in a threatening manner and told Linton to make the scene look like a burglary. After Appellant left, Linton called 911 and told the police that three men had tried to rob him and two of them fled after the other one was shot. This was also the story Linton first told to police officers when they arrived. Several hours later, he changed his story, admitting that Appellant had been there. He also admitted that he planned a "deal" with Johnson, but claimed that the deal was not supposed to take place at his house and that Johnson and Denson surprised him there to rob him. Linton was arrested, and several weeks later, he gave the police another statement, which was consistent with his testimony about the planned drug deal at his house. Once he admitted Appellant was present during the shooting, Linton was consistent in characterizing Appellant as a "hero" who saved him and his mother.

Johnson died at Linton's house. He had been shot in the back left shoulder at close range, with the bullet traveling slightly downward **291from back to front, transecting his aorta. When the police searched Linton's bedroom, they smelled the strong odor of unburnt marijuana but found only a small amount of marijuana in little baggies. They also found three cartridge casings and two bullets, all of which had been fired from the same gun as the bullet that killed Johnson.

In Linton's cell phone contacts, the police found phone numbers for "Ne-Yo Barbershop." Linton first told the police that these were numbers for a barbershop, but he later said that they were numbers for Appellant, whom Linton called "N.O." One of those numbers called Linton 15 times shortly after Linton called 911. The police determined that cell phones associated with that number and with another of the "Ne-Yo Barbershop" numbers, which the police independently connected to Appellant, were in the area of Linton's house around the time of the shooting.

After Appellant and Linton were arrested, they were put together in a holding cell while waiting for preliminary hearings. Appellant told Linton that he had burned the clothes he wore during the shooting, that the gun was gone, and that he painted the white Volvo black, so if Linton kept his mouth shut, they would be "in the clear." When Appellant returned from his hearing, however, he told Linton, "I'm going to f**king kill you." About a year later, a black Volvo that was registered to the mother of Appellant's child was found; records indicated that the car was originally white. In addition, a Lexus connected to Appellant was located and searched shortly after his arrest. In the car, the police found $ 1,878 and a vacuum sealer with a small amount of marijuana in it; an expert in *84drug dealing testified that such machines are often used to seal large packages of illegal drugs. When Appellant called the mother of his child from jail and she told him that the police had taken the Lexus, he sounded upset. In another phone call from jail, this one to his girlfriend, Appellant said, "I know I f**ked up. It's all messed up."3 Prison medical records showed that 31 days after the shooting, Appellant was treated for a finger injury that he said he had suffered one month prior.

(b) Appellant argues that the weight of the evidence presented at his trial does not support his convictions and that he should therefore be granted a new trial based on the so-called "general grounds" set forth in OCGA §§ 5-5-20 and 5-5-21.4 Whether to grant a new trial **292under either of these statutes is a decision directed solely to the discretion of the trial court. See Dent v. State

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Bluebook (online)
830 S.E.2d 79, 306 Ga. 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bannister-v-state-ga-2019.