308 Ga. 589 FINAL COPY
S20A0022. CARTER v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Brandon Carter was convicted of malice murder and
two firearm offenses in connection with the shooting death of
Terrance Baker. Appellant contends that the trial court erred by
admitting certain hearsay statements into evidence and by violating
his constitutional right to be present during his trial. Seeing no
reversible error, we affirm.1
1 Baker was killed on February 16, 2016. On May 10, 2016, a Richmond
County grand jury indicted Appellant, Elijah Washington, and Shawncy Barrett for malice murder, two counts of felony murder, and possession of a firearm during the commission of a felony. Appellant and Washington were also indicted for possession of a firearm by a convicted felon. Appellant’s case was severed for trial, which began on February 6, 2017. On February 8, the jury found him guilty of all charges. The count of possession of a firearm by a convicted felon had been bifurcated, and after the main trial, a brief additional proceeding was held and the jury found Appellant guilty of that charge as well. The trial court then sentenced Appellant as a recidivist to serve life in prison without the possibility of parole for malice murder and consecutive five-year terms for each of the firearm offenses. Although the trial court purported to merge the felony murder counts into the malice murder conviction, those counts were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 374 (434 SE2d 479) (1993). Appellant filed a timely motion for new trial, which he later amended through new counsel; the trial court denied the 1. Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trial showed the following.
Around 5:20 a.m. on February 16, 2016, an employee at a Waffle
House restaurant in Augusta called 911 to report that she had seen
a man who appeared to be dead from a gunshot wound in the
parking lot of the restaurant next door. Responding officers found
Baker lying dead with his head and torso on the ground and his feet
crossed inside the front, driver-side door of a gray Jeep.
Investigators determined that Baker had been shot once in the
back of his head, with the bullet exiting through his forehead and
lodging inside the dashboard instrument panel. They also found a
.40-caliber shell casing under the mat on the rear, passenger-side
floorboard and blood spatter on the gearshift. Based on the location
of the body, the bullet, the shell casing, and the blood spatter,
investigators determined that Baker was sitting in the driver’s seat
motion on December 13, 2018. Appellant then filed a timely notice of appeal, and the case was docketed to the term of this Court beginning in December 2019 and submitted for decision on the briefs. The record does not indicate what happened to Washington’s and Barrett’s cases; neither of them testified at Appellant’s trial. and the shooter was sitting in the rear, driver-side seat when Baker
was shot. Investigators also found $790 cash in Baker’s back left
pocket. They did not find any weapons on his body or in the Jeep.
Surveillance video recordings showed a red Ford Focus hatchback
turn toward the Waffle House parking lot around 2:55 a.m., followed
by the Jeep around 3:03 a.m.
Later that day, investigators learned from Baker’s cell phone
records that he received seven phone calls shortly before his death
from Elijah Washington’s phone number. Investigators went to
Washington’s apartment to meet him. Washington arrived around
9:00 p.m. driving a red hatchback. Around 8:30 p.m., Appellant, who
also lived in the apartment complex and saw the investigators
arrive, went to a restaurant where his mother worked and told her
that “a boy had got killed” but he was not involved. Appellant’s
mother contacted an officer to report that Appellant knew something
about a shooting and that she had taken him to a nearby motel for
his safety. Officers retrieved Appellant from the motel later that
night and took him to the sheriff’s office. Appellant was interviewed that night; the interview was video
recorded, and the recording was later played for the jury. Appellant
told investigators the following story. In the early morning hours of
February 16, Appellant’s cousin Shawncy Barrett and Washington
picked up Appellant at his apartment so they could get something
to eat and buy some marijuana. Around 2:30 a.m., Washington drove
them toward the Waffle House in the red hatchback. (A fingerprint
found on the hatchback’s front, passenger-side door was later
matched to Appellant.) Washington parked in the lot for the
restaurant next to the Waffle House and stayed in the hatchback
while Appellant and Barrett went inside the Waffle House.
Appellant and Barrett then went outside to the Waffle House
parking lot and walked up to a gray Jeep driven by Baker, who
recognized Appellant from their time in prison together. Baker
asked Appellant if they were planning to rob him, and Appellant
said, “Don’t know what they got going on.” Appellant and Barrett
then purchased marijuana from Baker and drove back to Appellant
and Washington’s apartment complex in Washington’s car. When they arrived, Washington, who was carrying a black and silver .40-
caliber handgun, told Appellant, “I got to go handle something,” and
drove away.
When the investigators told Appellant that they did not believe
his story, he modified it. He claimed that after he and Barrett
walked up to Baker’s Jeep in the Waffle House parking lot, they got
into the vehicle, with Appellant sitting in the rear, driver-side seat
and Barrett sitting in the front, passenger-side seat. They then
instructed Baker to drive to the parking lot next door where
Washington was parked to conduct their marijuana transaction
there. Baker drove them to the adjacent lot, parked, and retrieved
some marijuana from the Jeep’s center console. Baker then reached
down toward the driver-side door, and Barrett pulled a .40-caliber
Highpoint2 gun out of his jacket and shot Baker while Baker was
facing the driver-side door. Barrett took the marijuana and Baker’s
cell phone and pushed Baker out of the Jeep.
2 The transcript refers to this gun as a “Highpoint” brand. It is likely
actually “Hi-Point.” When an investigator told Appellant that the evidence showed
that the shooter was sitting behind Baker, Appellant modified his
account again. He claimed that Washington gave him a .40-caliber
Smith & Wesson handgun before he went into the Waffle House and
told him to make sure that nothing happened to Barrett. Appellant
said that he then shot Baker when Baker reached down toward the
driver-side door because Appellant thought Baker might shoot him
or Barrett. After Barrett pushed Baker out of the Jeep and took his
cell phone and the marijuana, Appellant, Barrett, and Washington
split the marijuana and drove back to the apartment complex. When
asked what happened to the Smith & Wesson handgun and Barrett’s
Highpoint gun, Appellant said that Washington had taken both
guns after the shooting.
Two days after the shooting, a maintenance worker found a
brown paper bag behind a dumpster next to the rental office at the
apartment complex. The bag contained a .40-caliber black and gray
Smith & Wesson handgun and a .40-caliber black Highpoint
handgun. A firearms examiner later determined that the shell casing and bullet recovered from Baker’s Jeep came from the Smith
& Wesson.
At trial, Appellant’s sister Kenteria Brown, who was 14 years
old at the time of the murder, testified that on the evening before
the shooting, Washington came into the apartment she shared with
Appellant and their mother, hit the curtains, and said, “I gotta kill
somebody tonight.” Washington then told Brown, “Go get [your]
brother and tell him to bring that fire.” (Brown testified that “fire”
is slang for a handgun.) Brown went upstairs, told her brother that
Washington wanted him, and saw him walk down the stairs with a
black and silver handgun.
Appellant, who was a convicted felon, testified at trial,
modifying his story yet again. He now claimed that after Baker
parked in the lot next to the Waffle House, Washington opened the
rear, driver-side door where Appellant was sitting and Appellant
scooted over to let Washington get into the car. Washington said to
Baker, “Boy, you got that for me,” and Baker said, “Yeah.” When
Baker grabbed the marijuana from the Jeep’s center console, Washington shot Baker with the .40-caliber Smith & Wesson, which
Appellant had given him earlier that night, and told Appellant and
Barrett, “y’all get that.” Appellant said no, but Barrett pushed
Baker’s body out of the Jeep and took Baker’s cell phone and some
marijuana. They fled in Washington’s car, and Washington
threatened to shoot Appellant and Barrett if they did not “shut up.”
Appellant further claimed at trial that after Washington
dropped Barrett off at his house and gave him some of the
marijuana, Washington brandished the Smith & Wesson and said
he was going to kill Barrett because he believed that Barrett would
tell on him, but Appellant stopped him from shooting Barrett.
Washington asked Appellant if he was going to tell, and Appellant
said, “No, I ain’t gonna say nothing. If anything, I’ll admit that I did
it.” Appellant denied shooting Baker and claimed that he had
confessed during his interview because he believed he would be
killed if he accused Washington. Appellant’s mother also testified
that before Appellant confessed during his interview, he told her, “I
just gotta do what I gotta do for my family. I’m gonna be killed either way.”
Appellant does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in accordance
with this Court’s practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdicts, the evidence presented at trial and summarized
above was sufficient to authorize a rational jury to find Appellant
guilty beyond a reasonable doubt of the crimes of which he was
convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979). See also OCGA § 16-2-20 (defining parties to a
crime); Green v. State, 304 Ga. 385, 387-388 (818 SE2d 535) (2018)
(“It is the role of the jury to resolve conflicts in the evidence and to
determine the credibility of witnesses, and the resolution of such
conflicts adversely to the defendant does not render the evidence
insufficient.” (citation and punctuation omitted)).
2. Appellant argues first that the trial court erred in admitting
Brown’s testimony about Washington’s statements to her on the
evening before the shooting. The State principally contended at trial, and the trial court ruled in its order denying Appellant’s
motion for new trial, that the statements were admissible under the
co-conspirator exception to the hearsay rule. See OCGA § 24-8-801
(d) (2) (E).3 Appellant asserts, however, that Washington’s
statements were at most requests to establish a conspiracy, and as
such they were not made during the course of or in furtherance of
any existing conspiracy. We can assume (without deciding) that the
admission of the statements was error, because the evidence was
harmless in any event.
“The test for determining nonconstitutional harmless error is
whether it is highly probable that the error did not contribute to the
verdict.” Perez v. State, 303 Ga. 188, 191 (811 SE2d 331) (2018)
(citation and punctuation omitted). See also OCGA § 24-1-103 (a)
3 OCGA § 24-8-801 (d) (2) (E) says:
(2) Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is: ... (E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph. (“Error shall not be predicated up on a ruling which admits or
excludes evidence unless a substantial right of the party is
affected . . . .”). “In determining whether trial court error was
harmless, we review the record de novo, and we weigh the evidence
as we would expect reasonable jurors to have done so as opposed to
viewing it all in the light most favorable to the jury’s verdict.”
Peoples v. State, 295 Ga. 44, 55 (757 SE2d 646) (2014) (citations and
punctuation omitted).
Washington’s first statement to Brown (“I gotta kill somebody
tonight”) was relevant only to show Washington’s state of mind, not
Appellant’s. Brown testified that Appellant was upstairs when
Washington made the statement, and there is no evidence that
Appellant heard or even knew about the statement prior to the
shooting. Indeed, Washington’s telling Brown about wanting to kill
someone while Appellant was upstairs supported Appellant’s theory
at trial that Washington unexpectedly killed Baker and that
Appellant was merely present in the Jeep.
Washington’s second statement, instructing Brown to go get Appellant and to “tell him to bring that fire,” was also minimally
harmful to Appellant, because the statement was largely cumulative
of other, properly admitted evidence. See Davis v. State, 302 Ga. 576,
584 (805 SE2d 859) (2017) (holding that even if a hearsay statement
was not admissible under the co-conspirator exception, “its
admission into evidence was harmless as it was merely cumulative
of other evidence at trial”). Brown testified based on her own
observations that Washington came to the apartment on the night
of the shooting and that she then saw Appellant carrying a black
and silver handgun when he came downstairs to meet and leave
with Washington. Moreover, Appellant testified that he gave
Washington the .40-caliber Smith & Wesson handgun that was used
to shoot Baker and was later recovered from a dumpster at
Appellant and Washington’s apartment complex two days after the
shooting. Washington’s statement added only the fact that
Washington wanted Appellant to bring the gun, which again only
made Washington look more culpable.
Moreover, the properly admitted evidence of Appellant’s guilt was compelling, at least to prove that he was a party to the crimes.
See OCGA § 16-2-20 (defining parties to a crime); Esprit v. State,
305 Ga. 429, 432 (826 SE2d 7) (2019) (“[A] jury may infer a common
criminal intent from the defendant’s presence, companionship, and
conduct with another perpetrator before, during, and after the
crimes.”). During his interview with the investigators and while
testifying at trial, Appellant told several somewhat inconsistent
stories about the night of the murder. But in each iteration,
Appellant admitted that he rode with Washington and Barrett to
the crime scene in Washington’s red hatchback, which had
Appellant’s fingerprint on the front, passenger-side door and which
was seen on surveillance video passing by the restaurant just a few
minutes before Baker’s Jeep.
Appellant also repeatedly admitted that when he and Barrett
got into Baker’s Jeep to buy marijuana, he sat in the rear, driver-
side seat, which is where the crime scene experts and investigators
concluded that the shooter was positioned when Baker was shot,
based on the forensic evidence. In addition, Appellant admitted at trial that the murder weapon — the black and gray .40-caliber
Smith & Wesson handgun — was his, and Brown saw Appellant
carrying a handgun that she described as black and silver when he
left the apartment with Washington shortly before the shooting.
Appellant also admitted that he got back into Washington’s car with
Washington and Barrett after Baker was shot, that he fled the scene
with them, and in one account that he, Washington, and Barrett
split up marijuana they had taken from Baker.
The jury quite reasonably rejected Appellant’s claim that
Baker was shot in self-defense. No weapon was found on Baker’s
body or in his Jeep, and the forensic evidence showed that Baker
was facing forward when he was shot, not reaching toward and
facing the driver-side door as Appellant claimed. Whether Appellant
was the shooter (as he admitted in his final story to the
investigators) or Barrett or Washington shot Baker using
Appellant’s gun (as he claimed in other versions), the evidence of
Appellant’s guilt was compelling.
For these reasons, it is highly probable that any error in admitting Washington’s statements to Brown did not contribute to
the guilty verdicts. See Kirby v. State, 304 Ga. 472, 487 (819 SE2d
468) (2018) (holding that although evidence was erroneously
admitted, the error was harmless because any prejudice it caused
“was easily offset by the other compelling evidence against
[a]ppellant”).
3. About an hour after beginning its deliberations, the jury sent
a note to the trial court that asked, “Why wasn’t GSR [gunshot
residue] done on defendant?” The prosecutor and Appellant’s
counsel agreed that the court should respond, “You must decide the
case on the evidence presented to you during the trial,” and the court
did so. The court then took a recess. The trial transcript does not
state explicitly whether Appellant was present in the courtroom for
this brief discussion. The transcript shows that a few minutes later
the court went back on the record and, after stating that Appellant
was present with his lawyer, marked the jury’s note as an exhibit
for the record.
Appellant now contends that the initial discussion of the jury’s note during his alleged absence from the courtroom violated his
constitutional “‘right to be present, and see and hear, all the
proceedings which (we)re had against him on trial before the
(c)ourt.’” Heywood v. State, 292 Ga. 771, 773 (743 SE2d 12) (2013)
(citation omitted). We need not decide whether Appellant actually
was present for the initial discussion of the jury’s note, because he
had no right to be present for that discussion.
A defendant’s right to be present attaches “‘at any stage of a
criminal proceeding that is critical to its outcome if [the defendant’s]
presence would contribute to the fairness of the procedure.’” Leeks v.
State, 296 Ga. 515, 519 (769 SE2d 296) (2015) (citation omitted). But
the right “does not extend to situations where the defendant’s
presence would be useless, or the benefit but a shadow.” Heywood,
292 Ga. at 774 (citation and punctuation omitted). Thus, our
precedent makes clear that a defendant who is represented by
counsel need not be present for portions of a trial that “involve
questions of law and consist of essentially legal argument about
which the defendant presumably has no knowledge.” Id. (citation and punctuation omitted). So such a defendant’s right to be present
is not violated by his involuntary absence from the court’s charge
conference with counsel, see Huff v. State, 274 Ga. 110, 111-112 (549
SE2d 370) (2001), or “‘from [a] conference held by a trial court with
defense and prosecuting counsel to discuss a response to a
deliberating jury’s substantive inquiry.’” Leeks, 296 Ga. at 519
(citation omitted). Compare Burney v. State, 299 Ga. 813, 819 (792
SE2d 354) (2016) (explaining that jury notes concerning the
composition of the jury are within the scope of the defendant’s right
to be present and thus are required to be discussed with the
defendant present or made available to him).
In this case, the initial discussion of the jury note presented a
purely legal issue regarding how the trial court should respond to
the jury’s substantive inquiry about why certain evidence was not
presented. The jury’s question called solely for legal argument from
the prosecutor and defense counsel, who were both present and in
agreement that the court should simply refer the jurors to the
evidence presented at trial. Thus, even assuming that Appellant was absent during the discussion, his right to be present was not
violated. See, e.g., Leeks, 296 Ga. at 519 (holding that the
defendant’s right to be present was not violated when the trial court,
with defense counsel present, answered a jury question by referring
the jury to previous instructions, because the defendant “could [not]
have made a meaningful contribution to the manner in which [the
court] formulated [its] response”); Johnson v. State, 293 Ga. 641, 644
(748 SE2d 896) (2013) (holding that the defendant’s right to be
present was not violated when the trial court and counsel discussed
a jury note in his absence and the court referred the jury to already-
issued instructions, because “the discussion pertained to legal
matters about which [he] could not have made a meaningful
contribution”).
Judgment affirmed. All the Justices concur. DECIDED MAY 4, 2020. Murder. Richmond Superior Court. Before Judge Flythe. Crawford & Boyle, Eric C. Crawford, for appellant. Natalie S. Paine, District Attorney, Joshua B. Smith, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Alex M. Bernick, Assistant Attorney General, for appellee.