312 Ga. 134 FINAL COPY
S21A0159. FITTS v. THE STATE. S21A0160. FRANKLIN v. THE STATE.
BETHEL, Justice.
In these related appeals, Donovan Raishad Fitts and
Jermanique Vashon Franklin appeal their convictions for murder
and other crimes in connection with the shooting deaths of Tenecia
Posley and Barry Johnson.1 In Case No. S21A0159, Fitts asserts
1 The crimes occurred on March 4, 2015. On January 26, 2017, a Warren
County grand jury indicted Fitts, Franklin, and DeAundre Ross for two counts of malice murder, felony murder, burglary in the first degree, aggravated assault, and possession of a firearm during the commission of a felony and one count each of armed robbery, false imprisonment, and home invasion. Following a six-day joint trial ending on August 28, 2017, Ross was acquitted after he presented evidence that while the murders were being committed, he was in another county for a court calendar call related to another crime. However, the jury found Fitts guilty of all counts, and he was sentenced to serve consecutive life sentences without parole for each count of malice murder, another consecutive life sentence for armed robbery, ten years in prison to be served consecutively for false imprisonment, another consecutive life sentence for home invasion, and five years in prison to be served consecutively for each possession count. The other counts were either merged or vacated by operation of law. Fitts moved for new trial on September 6, 2017, and amended his motion on August 7, 2019. The trial court held a hearing on January 7, 2020, and denied his motion for new trial on February 6, 2020. Fitts timely filed a notice of appeal. The jury found Franklin guilty of both counts of felony murder, one count of burglary, and armed robbery, but acquitted her of the other charges. that the trial court erred in admitting evidence of a subsequent
shooting incident as intrinsic evidence and as other-acts evidence
under OCGA § 24-4-404 (b) and that his trial counsel rendered
ineffective assistance for failing to object to certain hearsay
testimony and for not moving for a mistrial. In Case No. S21A0160,
Franklin claims that the evidence was insufficient to convict her
beyond a reasonable doubt as a party to the crimes, that the Court
should reconsider the standard of review for sufficiency, and that
she received ineffective assistance of counsel at trial.
As to Fitts, we discern no reversible error, so we affirm in Case
No. S21A0159. As to Franklin, we reject each of her enumerations
of error, but we have found a merger error with regard to her
convictions for armed robbery and burglary. We therefore affirm her
Franklin was sentenced to two life sentences to be served concurrently for the felony murders, twenty years in prison to be served consecutively for burglary, and a third life sentence for armed robbery to be served concurrently. On September 15, 2017, Franklin filed a motion for new trial, which was amended twice. After a hearing, the trial court denied her motion for new trial on February 7, 2020, and Franklin timely appealed to this Court. These cases were docketed to the term of court beginning in December 2020, consolidated for review, and submitted for a decision on the briefs. 2 convictions for felony murder but vacate her convictions for armed
robbery and burglary in Case No. S21A0160.
Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial shows that Fitts and Franklin started
dating in late 2014 and began living together in early 2015.2 The
couple resided at the home of Fitts’s godmother, Melba Ansley, who
testified that Franklin, who was a nurse’s assistant, moved in to care
for her after her recent heart surgery. Ansley also testified that she
considered Fitts to be her son, he had lived with her since he was 12
years old, and she allowed him to use her cell phone and her truck.
Fitts’s friend DeAundre Ross, who was dating Franklin’s sister,
often visited Fitts at Ansley’s home.
During this time, Franklin was having an affair with Damian
Calvin. Franklin had previously lived with Calvin at his house and
was familiar with some drug activity occurring there. Calvin was a
drug dealer, and he kept illegal drugs in his house. The two had
2 The couple were married in September 2015, six months after the crimes at issue. 3 plans to meet at a hotel about 45 minutes away on March 3, 2015,
but Franklin rescheduled for the morning of March 4. Midmorning
that day, right before she met Calvin at the hotel, phone records
showed that Franklin called Fitts once on Fitts’s own phone and
several times on Ansley’s phone, which was prepaid and therefore
had no subscriber information.3 The cell-site location information for
Fitts’s phone placed him near Calvin’s house during this time.
Franklin testified that Fitts was using Ansley’s phone because his
own was broken. The two had no contact again until 11:22 a.m.,
when Fitts used Ansley’s phone to call Franklin. Franklin testified
that the phone calls were about repairs for Ansley’s truck.
While at the hotel with Franklin, sometime between 11:00 a.m.
and 11:20 a.m., Calvin received a call from Johnson, who said he was
on Calvin’s front porch. Johnson was a regular customer of Calvin.
Calvin told Johnson that he was not there and to come back another
time. Roughly ten minutes later, Calvin’s cousin, Keith Robertson,
3At the time of his arrest several months later, Fitts provided the number for Ansley’s prepaid phone as his phone number. 4 called Calvin to tell him that, as he was driving past Calvin’s house,
he saw two men run from the house toward a truck parked across
from Calvin’s driveway in a sandpit. Robertson turned around so
that he could go back to check on Calvin’s house and then saw the
truck leave the sandpit.4 On the phone, Calvin asked Robertson to
check on both Calvin’s son and Posley, who was Calvin’s girlfriend
at the time, inside the house. After driving up Calvin’s driveway,
Robertson saw Johnson dead on the front porch, still holding his
cigarettes and keys. Robertson called for Posley, heard no reply, and
told Calvin to hurry home. Robertson then called 911 at
approximately 11:30 a.m. and waited at the end of Calvin’s driveway
for the police to arrive.
The police found the house thoroughly ransacked. The police
also discovered shoeprints leading from an abandoned house next
door through the woods to Calvin’s back door, where someone had
4 Neighbors testified that they noticed a truck parked in the sandpit that
morning where they rarely, if ever, saw vehicles parked. One neighbor testified that he saw the truck leave shortly after 11:00 a.m. Detectives later discovered that the tires from Ansley’s truck matched the make and size of the tire prints from the truck parked in the sandpit on the day of the murders. 5 used a brick to break in. The police discovered Posley, who had been
shot five times, on the floor in the corner of a bedroom, tightly bound
with zip ties. Calvin’s two-year-old son was found unharmed on the
bed. Johnson had been shot eight times through the glass front door.
Calvin testified that his drug merchandise and between $8,000 and
$9,000 in cash were missing after the incident. A GBI firearms
examiner testified that bullets and shell casings found at Calvin’s
house were all from the same gun; the police also later found shell
casings from this gun both at Ansley’s house5 and at the scene of a
subsequent shooting incident where both Fitts and Ross were
present.
After leaving the hotel, Franklin called Calvin a few times,
starting at 11:27 a.m. In the afternoon, Fitts and Franklin met at
the home they shared with Ansley and took Ansley’s truck for
repairs. Franklin testified that, on their way home, they picked up
Ross and that Fitts and Ross spent the rest of the day at Ansley’s
5 Ansley testified that Fitts and Ross would occasionally engage in target
practice in the yard. 6 house. That evening, GBI agents interviewed Franklin to
corroborate Calvin’s alibi. Franklin was not considered a suspect at
that time. During that interview, she identified her boyfriend as
“Donovan Ansley,” but gave his correct address.
Franklin did not continue her physical relationship with
Calvin after the shootings. However, she asked him as often as every
other day about whether there were leads in the case.
In October 2015, the GBI executed a search warrant at Ansley’s
house. In November 2015, Franklin agreed to be interviewed by the
GBI. Franklin claimed that on the day of the crimes, she and Fitts
returned straight home after dropping off Ansley’s truck for repairs,
and that Fitts then stayed in his room. She made no mention of Ross
at that time. The police later arrested Fitts and Franklin.
While Fitts was in jail in March 2017, his sister asked him in
a recorded call, “So you did the shooting?” Fitts responded, “No, but
I was there, and I had a big part in it. Not with that one anyway.”
Fitts’s sister asked why Fitts would “do something like that,”
referring to the crimes. Fitts recounted how badly he needed money
7 but that the crime “wasn’t supposed to go like that.” Fitts said that
he knew what he did, that his situation pushed him to do certain
things that he would not normally do, and that remembering the
murders would eat him up when he was not busy or distracted.
At trial, following the close of the State’s case-in-chief,
Franklin moved for a directed verdict of acquittal under OCGA § 17-
9-1 (b). The trial court denied the motion at that point. Fitts declined
to testify, but Franklin testified in her defense and denied
participating in planning the crimes.6 Franklin testified that,
unknown to Fitts, she and Calvin had secretly planned to meet for
sex, that she had no knowledge that the crimes were being
committed during her tryst with Calvin, and that she could not
account for why Fitts had decided to commit the crimes at Calvin’s
home during that same time frame.
Case No. S21A0159
6 Fitts does not contest the sufficiency of the evidence to support his
convictions, and for non-death penalty cases that were docketed to the term of court beginning in December 2020, we no longer routinely conduct a sua sponte sufficiency review. See Davenport v. State, 309 Ga. 385, 399 (4) (b) (846 SE2d 83) (2020). 8 1. Fitts asserts that the trial court erred by admitting evidence
of a March 31, 2015 shooting incident, which the court admitted as
intrinsic evidence or, alternatively, as evidence of other acts under
OCGA § 24-4-404 (b), and in charging the jury on the limited purpose
of this evidence. We conclude that this claim does not require
reversal because any error was harmless to Fitts.
A few weeks after the murders, DeAundre Ross, who was
Fitts’s and Franklin’s co-defendant, was driving an SUV with his
brother as a passenger, while Fitts was driving a separate vehicle
behind them. Ross exchanged gunfire with a third party, leaving
shell casings on the street and inside the SUV. After the shooting,
Ross’s SUV broke down due to a bullet hole in its gas tank, so Fitts
gave Ross and Ross’s brother a ride back to Ross’s father’s house.
Law enforcement officers later determined that the shell casings
from this shooting incident matched the casings found at the scene
of the murders and at Ansley’s home where Fitts lived and Ross
often visited, meaning that the same gun had been used at all three
locations.
9 Before trial, the State filed a notice of intent to present
evidence of the shooting incident under OCGA § 24-4-404 (b) (“Rule
404 (b)”), and after a hearing, the trial court ruled that the evidence
was admissible as intrinsic evidence or, alternatively, under Rule
404 (b). Assuming without deciding that the evidence of the shooting
incident was admitted in error, this error was harmless to Fitts.
“The test for determining nonconstitutional harmless error is
whether it is highly probable that the error did not contribute to the
verdict.” (Citation and punctuation omitted.) Taylor v. State, 306 Ga.
277, 283 (2) (830 SE2d 90) (2019). When applying a harmless-error
analysis, we review the evidence de novo and weigh it as a
reasonable juror would rather than in a light most favorable to
upholding the jury’s guilty verdict. See id.
Here, the State relied heavily on the evidence of the
subsequent shooting to try to prove Ross’s participation in the
murders, and the evidence presented only indirectly implicated Fitts
in the shooting. At trial, the State presented evidence that Fitts was
driving behind Ross’s SUV when Ross used a gun in the shooting,
10 that the gun was the same one that was used in the murders three
weeks earlier and at Ansley’s house where Fitts lived and Ross often
visited, and that Fitts later drove Ross and Ross’s younger brother
home. However, there was no evidence presented at trial that Fitts
handled the gun during the shooting incident or was otherwise
involved in that shooting, or that Fitts was investigated for any
crime in relation to the shooting, unlike Ross.
In its closing argument, although the State argued that Fitts
was with Ross “doing another shooting together” when the murder
weapon was used in the shooting incident, the State emphasized the
shooting evidence with respect to Ross, saying multiple times that
the gun belonged to Ross and that it was Ross’s personal weapon
that he would not have shared. And the trial court gave a limiting
instruction in the final jury charge directing the jurors to consider
the State’s evidence of other crimes only insofar as it related to the
issues of knowledge, intent, and participation in a conspiracy.
In contrast to Fitts’s tenuous connection to that shooting
incident, the evidence presented at trial as to Fitts’s guilt for the
11 murders was strong. Most significantly, in the recorded jail phone
calls with his sister, Fitts admitted to playing a “big part” in the
crimes (although he denied shooting the victims), gave his motive
for the robbery, and said that he felt guilty about his participation.
Also, the tire tracks found at the scene were consistent with the tires
on Ansley’s truck that Fitts drove, and cell-site location data placed
Fitts in the vicinity of Calvin’s house during the crimes. Therefore,
we conclude that under the circumstances of this case, it is highly
probable that the admission of the evidence concerning the later
shooting incident did not contribute to the jury’s verdicts. See Lofton
v. State, 309 Ga. 349, 356-358 (3) (b) (846 SE2d 57) (2020) (error was
harmless where prosecution presented strong independent evidence
of guilt, jury properly learned that appellant had access to murder
weapon, evidence was not significantly relied on in State’s closing
argument, and “any harm . . . was lessened because the State did
not try to use the [evidence] to establish that Appellant rather than
[his co-defendant] was the shooter”); Taylor, 306 Ga. at 283 (2) (error
was harmless because the evidence was strong and there was no
12 contention that prosecution heavily relied on erroneously admitted
evidence in closing argument).
2. Fitts asserts that he was denied constitutionally effective
assistance of counsel when his trial counsel failed to object to
hearsay testimony he claims was barred by the Confrontation
Clause of the United States Constitution and to move for a mistrial.
We disagree.
To prevail on this claim, Fitts must establish both that his
representation was professionally deficient and that he suffered
prejudice as a result, meaning that but for counsel’s deficient
performance, a reasonable probability exists that the outcome at
trial would have been different. See Strickland v. Washington, 466
U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Fitts
cannot establish either deficient performance or prejudice, then we
need not address the other, and his claim will not succeed. See id.
During the direct examination of Ross’s father, Ross’s counsel
asked about his son’s involvement in the March 31, 2015 shooting
incident: “Did you know — did [Ross], your son, tell you anything
13 about the gun he had that day?” Ross’s father responded, “I know —
as far as the gun is concerned — he [Ross] supposedly gave it back
to Fitts.” The State then asked for a bench conference, during which
a discussion was held on the potential constitutional implications of
this response. The State and each defense counsel agreed to move
on after the trial court gave the jury the curative instruction: “the
previous answer that you just heard, you are instructed by the Court
to disregard that answer and not consider it as evidence in any
manner in this case. Do you understand?” Defense counsel then
resumed questioning Ross’s father.
Fitts argues that because the statement made by Ross’s father
violated Fitts’s constitutional right under the Confrontation Clause
and Ross’s defense counsel’s question itself was meant to elicit
inadmissible hearsay, his own trial counsel’s failure to object to this
testimony and timely move for a mistrial amounts to
constitutionally ineffective assistance of counsel.7
7 Fitts argues in passing that Ross’s father’s statement violated Fitts’s
rights under Article I, Section I, Paragraph XIV of the Georgia Constitution, but Fitts does not provide any citations of authority or arguments that would 14 A defendant’s right under the Confrontation Clause is violated under Bruton [v. United States, 391 U.S. 123 (88 SCt 1620, 20 LE2d 476) (1968),] when there is a joint trial of co-defendants and the testimonial statement of a co-defendant who does not testify at trial is used to implicate the other co-defendant in the crime or crimes on trial.
Battle v. State, 301 Ga. 694, 700 (4) (804 SE2d 46) (2017). In this
case, there was a joint trial of co-defendants where witness
testimony introduced a statement made by co-defendant Ross, who
had invoked his right against self-incrimination and did not testify,
that implicated his co-defendant Fitts.
However, “[t]he admission of an out-of-court statement into
evidence at a criminal trial comes within the scope of the
Confrontation Clause only if the statement was testimonial. A
statement is testimonial if its primary purpose was to establish
evidence for use in a future prosecution.” (Citations and punctuation
omitted.) Reed v. State, 307 Ga. 527, 536 (2) (c) (837 SE2d 272)
suggest a more expansive right under the Georgia Constitution than under the United States Constitution. Therefore, we restrict our analysis to his claims under the United States Constitution. 15 (2019). Testimonial statements include statements made to a
government officer, during a police investigation or interrogation, or
intended to accuse someone of a crime and produce evidence for a
criminal prosecution. See Billings v. State, 293 Ga. 99, 104 (4) (745
SE2d 583) (2013); see also Allen v. State, 300 Ga. 500, 504 (3) (796
SE2d 708) (2017) (co-defendant’s statements made to a third party
after crimes and before arrests were not testimonial). Here, Ross
made the statement shortly after the shooting incident, before any
arrests, to his father rather than to police officers investigating a
crime, so it was not testimonial. Thus, any objection to this
testimony based on Bruton would have been meritless. See Reed, 307
Ga. at 536 (2) (c) (failure to make meritless objection does not
constitute ineffective assistance of counsel).
We reach the same conclusion, but for different reasons, about
Fitts’s claim that his counsel should have objected to this testimony
as hearsay and moved for a mistrial. Pretermitting whether it would
have qualified under a hearsay exception, the statement was not
admitted into evidence. Instead, upon agreement of the parties, the
16 trial court instructed the jury that it was to disregard Ross’s father’s
answer to the question and to not consider it for any purpose.
Moreover, at the hearing on Fitts’s motion for new trial, trial counsel
testified that she feared that Ross’s father possessed more direct
knowledge implicating Fitts and decided to agree to the instruction
to disregard the testimony in order to move away from that line of
questioning. We cannot say that counsel’s strategic decision to
refrain from objecting to a statement that was excluded and moving
for a mistrial “fell outside the wide range of reasonably effective
assistance, or that [Fitts] would have been granted a mistrial but for
counsel’s decision not to move for one.” (Citations and punctuation
omitted.) Allen v. State, 277 Ga. 502, 503 (3) (a) (591 SE2d 784)
(2004). Thus, Fitts’s ineffective assistance of counsel claim on this
ground also fails.
Case No. S21A0160
3. Franklin asserts that there was insufficient evidence both as
a matter of constitutional due process and under Georgia statutory
law to support her convictions for felony murder, burglary, and
17 armed robbery and that the trial court should have therefore
granted her motion for directed verdict of acquittal. Upon reviewing
the evidence presented at trial, we conclude that the evidence, while
far from overwhelming, was sufficient to sustain her convictions and
the trial court’s denial of her motion for directed verdict.
On appeal, a criminal defendant is no longer presumed
innocent, and we review whether the evidence presented at trial,
when viewed in the light most favorable to the jury’s verdicts,
enabled the jury to find the defendant guilty beyond a reasonable
doubt of the crimes of which she was convicted. See Jackson v.
Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979); State v. Holmes, 304 Ga. 524, 526-527 (1) (820 SE2d 26)
(2018). “The standard of review for the denial of a motion for a
directed verdict of acquittal is the same as for determining the
sufficiency of the evidence to support a conviction.” (Citation and
punctuation omitted.) Smith v. State, 304 Ga. 752, 754 (822 SE2d
220) (2018). “Under this review, we must put aside any questions
about conflicting evidence, the credibility of witnesses, or the weight
18 of the evidence, leaving the resolution of such things to the
discretion of the trier of fact.” (Citation and punctuation omitted.)
Frazier v. State, 308 Ga. 450, 452-453 (2) (a) (841 SE2d 692) (2020).
In addition, as a matter of Georgia statutory law,
[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.
OCGA § 24-14-6. “Whether alternative hypotheses are reasonable,
however, is usually a question for the jury, and this Court will not
disturb the jury’s finding unless it is insufficient as a matter of law.”
Frazier, 308 Ga. at 453 (2) (a). In reviewing whether the prosecution
ruled out every reasonable hypothesis, we ask whether the jury was
entitled to discredit alternative theories that could have explained
the circumstantial evidence and to believe the State’s theory of the
case instead. See Guzman-Perez v. State, 310 Ga. 573, 576 (1) (853
SE2d 76) (2020). When considering circumstantial evidence, jurors
are entitled to draw reasonable inferences “based on their own
common-sense understanding of the world” that “are ordinarily
19 drawn by ordinary [people] in the light of their experience in
everyday life.” (Citations and punctuation omitted.) McKie v. State,
306 Ga. 111, 115-116 (829 SE2d 376) (2019).
Criminal liability is imposed not only where a defendant has
directly committed crimes, but also where a defendant is a party to
the crimes, meaning where a defendant intentionally causes another
person to commit crimes, intentionally aids in the commission of
crimes, or intentionally advises, encourages, hires, counsels, or
procures another to commit crimes. See OCGA § 16-2-20.
Conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the direct perpetrators of the crimes. A jury may infer a common criminal intent from the defendant's presence, companionship, and conduct with other perpetrators before, during, and after the crimes.
(Citation and punctuation omitted.) Coates v. State, 310 Ga. 94, 98
(849 SE2d 435) (2020).
Upon consideration of the standard of review requiring that we
construe the evidence in the light favoring the jury’s verdicts and
principles of accomplice liability, we conclude that the evidence was
20 sufficient to show that Franklin intentionally participated in the
criminal plan and was thus sufficient to sustain her convictions.8
Moreover, even if we were to consider all of the evidence against
Franklin to be circumstantial,9 the jury was authorized to find that
the evidence excluded “every other reasonable hypothesis save that
8 Franklin relies on several cases where this Court reversed convictions
due to the insufficiency of party-to-a-crime evidence, including Clyde v. State, 276 Ga. 839 (584 SE2d 253) (2003) (Clyde had motive and purchased the guns used by his cousins to commit the murder, but there was no proof he participated in the plan); Bacon v. State, 267 Ga. 325 (477 SE2d 122) (1996) (direct evidence of association with the murderer plus circumstantial evidence of presence during initial confrontation was insufficient without evidence of intent); Moore v. State, 255 Ga. 519 (340 SE2d 888) (1986) (insufficient evidence to support Steve’s murder conviction where brothers Delton and Steve had motive and fled together afterward, and witness testimony supported Delton’s involvement, but circumstantial evidence implicated only Steve’s presence and not his intent); and Brown v. State, 250 Ga. 862 (302 SE2d 347) (1983) (evidence of presence at the crime scene, association with the murderer, and even approval of act short of encouragement but not intent to participate was insufficient). We need not decide if all of these cases were correctly decided, because unlike here, there was no evidence in these cases presented that the defendant agreed to or intended to participate in the crimes. 9 If disbelieved by the jury, Franklin’s testimony denying her
involvement in the crime could have served as direct evidence of the opposite proposition. But we need not decide whether that is so here, nor if so, whether and how much corroborative evidence would be required to support a defendant’s disbelieved testimony because the circumstantial evidence here, when construed in favor of the verdicts, is sufficient to support the verdicts the jury returned. Cf. Daughtie v. State, 297 Ga. 261, 263-264 (2) (773 SE2d 263) (2015) (where there is no other evidence of defendant’s guilt, then jury disbelief of a defendant’s testimony, alone, is insufficient to sustain a conviction).
21 of the guilt of the accused.” OCGA § 24-14-6. The evidence presented
authorized the jury to find that Franklin had lived at the
burglarized home previously; knew of Calvin’s drug-dealing and of
his income tied to that business; served as a potential connection
between Fitts and Calvin; planned to meet and did meet Calvin at a
hotel while the crimes were being committed; communicated with
Fitts on the phone shortly before and after the crimes were
committed; followed Fitts to a repair shop away from Ansley’s home
so that they could drop off Ansley’s truck, which was seen by
witnesses in connection with the crimes; and gave investigators the
name Donovan Ansley, with the last name of Fitts’s godmother,
rather than Fitts’s real last name when she was first interviewed.
Further, the jury was entitled to believe the State’s theory and infer
that Franklin rescheduled her meeting with Calvin to ensure his
absence during the planned burglary; that the crimes would not
have been committed without Calvin being away; that in order to
mislead investigators, Franklin gave the GBI a false name for Fitts;
and that Franklin continued contact with Calvin, but not their
22 sexual relationship, after the crimes in order to keep tabs on the
investigation. The jury could have reasonably disbelieved Franklin’s
testimony that immediately before and after the crimes the jury
found Fitts to have directly committed, she and Fitts spoke on the
phone multiple times but only discussed how Ansley’s truck needed
repair; she and Fitts used Ansley’s prepaid phone because his other
phone, which he used throughout the same day, was broken; and her
rescheduled rendezvous with Calvin was unrelated to luring Calvin
away from his home during the burglary.
Regardless of whether Franklin intended that Fitts would
commit the murders, for the reasons outlined above the jury was
thus authorized to find that Franklin intended him to commit
burglary, which created a reasonably foreseeable risk that someone
would be killed. See OCGA § 16-2-6 (intent may be inferred upon
consideration of conduct and circumstances); see also Ellis v. State,
292 Ga. 276, 279 (1) (736 SE2d 412) (2013) (defendant guilty for
murder as a party to a crime because the crimes he did intend were
dangerous and created a foreseeable risk of death); Parks v. State,
23 272 Ga. 353, 354-355 (529 SE2d 127) (2000) (same). Accordingly,
Franklin’s argument fails.
4. Franklin also argues that as a matter of federal
constitutional due process, this Court should modify its approach to
reviewing the sufficiency of the evidence under the Fourteenth
Amendment and the United States Supreme Court’s decision in
Jackson v. Virginia. More specifically, Franklin argues that being
convicted based on only circumstantial evidence and as a party to a
crime creates too great a risk that an innocent person will be
convicted of crimes he or she did not commit, and that in these cases
specifically, to satisfy the demands of due process, the standard of
review should allow or include a consideration of evidentiary
conflicts in favor of the defendant’s innocence. However, Franklin
has not provided us with any legal authority to support her
argument that such a balancing test is required by the Due Process
Clause of the Fourteenth Amendment, as construed in Jackson.
Without more to show how this Court’s application of the Jackson
standard of review violates Franklin’s right to due process under the
24 Fourteenth Amendment, we will not deviate from that standard of
review.
5. Franklin also argues that her trial counsel rendered
constitutionally ineffective assistance. During his opening
statement, Franklin’s trial counsel said, “Now, . . . this case involved
apparently several individuals having duplicitous sexual
relationships with two different people at the same time. My client
was one of them.” Franklin argues that by calling her “duplicitous”
during his opening statement, her trial counsel destroyed her
credibility and set a negative tone for the evidence presented by
Franklin throughout trial. Considering that trial counsel testified
that his defense strategy was to show that Franklin was a credible,
good person from a well-liked family with a steady and respectable
job as a nurse, Franklin argues, her counsel’s discrediting comment
was a mistake that no reasonable attorney would make.
To prevail on this claim, Franklin must establish both deficient
performance and prejudice under Strickland. To establish that her
trial counsel performed deficiently, Franklin must prove that
25 counsel performed his duties “in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms.” (Citation and punctuation omitted.) Watts v.
State, 308 Ga. 455, 458 (2) (841 SE2d 686) (2020). “Trial tactics or
strategy are almost never adequate grounds for finding trial counsel
ineffective unless they are so patently unreasonable that no
competent attorney would have chosen them.” (Citation and
punctuation omitted.) Id. at 460 (2). And absent evidence to the
contrary, counsel’s actions are presumed strategic. See id. at 461 (2).
We see no objectively unreasonable performance in Franklin’s
trial counsel’s comment. Trial counsel testified that, in addition to
establishing that Franklin was more respectable than her co-
defendants, his strategy was to show that she was not a co-
conspirator but was merely caught in a love triangle that led to the
crimes. Even though describing one’s own client as “duplicitous”
might not have been the best choice of words for counsel to use before
the jury, under the circumstances, reasonable counsel could have
employed that description consistent with a reasonable trial
26 strategy of acknowledging to the jury the dishonesty involved in the
love triangle in which Franklin was participating. Accordingly,
because Franklin cannot establish that no reasonable attorney
would have made this choice under the circumstances, she has not
shown that her counsel performed deficiently, and her claim of
ineffective assistance fails.
6. Finally, we have identified a merger error in Franklin’s
sentencing. We have discretion upon our own initiative to correct
merger errors when they result in illegal and void judgments of
conviction and sentences. See Dixon v. State, 302 Ga. 691, 696-697
(4) (808 SE2d 696) (2017).
Franklin was sentenced to serve three concurrent life
sentences for both felony murder counts and armed robbery and to
serve twenty years consecutively for burglary. The indictment in
this case did not predicate the charges of felony murder on a specific
felony; instead, each charge was predicated on “the commission of at
least one of the following felony offenses, to wit: burglary, armed
robbery, false imprisonment, aggravated assault, and home
27 invasion.” The jury did not specify which felony served as the basis
for either of Franklin’s convictions for felony murder. Where
ambiguity exists in the jury’s verdicts because the jury did not
specify which of two or more felonies served as the predicate felony
for a guilty verdict for felony murder, this ambiguity “must be
construed in the defendant’s favor.” Thompson v. State, 263 Ga. 23,
25 (2) (426 SE2d 895) (1993), overruled on other grounds, McClellan
v. State, 274 Ga. 819, 821 (1) (b) (561 SE2d 82) (2002).
Due to the ambiguity in the jury’s verdicts, Franklin’s
conviction for armed robbery should have merged into one of her
convictions for felony murder. See Robertson v. State, 268 Ga. 772,
780 (22) (493 SE2d 697) (1997) (where unclear which of armed
robbery and burglary was the underlying felony for a single felony
murder conviction, trial court must merge armed robbery with
felony murder as the most severe in terms of potential punishment).
Likewise, her conviction for burglary should have merged into her
remaining conviction for felony murder.
For the reasons set forth above, we affirm Franklin’s
28 convictions for felony murder, and we vacate her convictions for
burglary and armed robbery, which should have merged with her
felony murder convictions.
Judgment affirmed in Case No. S21A0159. Judgment affirmed in part and vacated in part in Case No. S21A0160. All the Justices concur, except Nahmias, P. J., who concurs in judgment only as to Division 3 of Case No. S21A0160, and Melton, C. J., and McMillian, J., who dissent in Case No. S21A0160.
MCMILLIAN, Justice, concurring in part and dissenting in part.
In these related appeals, Donovan Fitts and Jermanique
Franklin appeal their convictions for murder and other crimes in
connection with the shooting deaths of Tenecia Posley and Barry
Johnson. The evidence that Fitts, along with an unknown male
assailant, shot the victims during the course of a burglary was
substantial. Therefore, I concur fully in the Court’s decision in Case
No. S21A0159, in which we affirm Fitts’s convictions. However, it is
undisputed that Franklin was not present immediately before,
during, or after the shootings, and the circumstantial evidence upon
29 which this Court relies amounts to Franklin’s relationship as Fitts’s
girlfriend at the time the crimes were committed and conduct
common to such relationships like calling one another on the phone
and helping take a vehicle for repairs. Because I disagree that there
was sufficient evidence as a matter of Georgia statutory law and
constitutional due process for a rational jury to find Franklin guilty
of these crimes beyond a reasonable doubt, I respectfully dissent to
this Court’s judgment in Franklin’s case.
The standard of review for determining the sufficiency of the
evidence to support a conviction under the Due Process Clause of the
Fourteenth Amendment is well-established: whether the evidence
presented at trial, when viewed in the light most favorable to the
jury’s verdict, enabled a rational jury to find the defendant guilty
beyond a reasonable doubt of the crimes of which she was convicted.
See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979). This Jackson v. Virginia standard has been cited
over 13,000 times in Georgia appellate courts, but rarely has the
standard as described in Jackson been elucidated, so I revisit it here.
30 The Jackson Court explained the reason for this standard of review:
“a properly instructed jury may occasionally convict even when it
can be said that no rational trier of fact could find guilt beyond a
reasonable doubt.” Id. at 317 (III) (B). So “the critical inquiry” must
be “after viewing the evidence in the light most favorable to the
prosecution,” whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Id. at
318-19 (III) (B). In conducting this inquiry, the trier of fact is given
the responsibility of fairly resolving conflicts in the testimony,
weighing the evidence, and drawing “reasonable inferences from
basic facts to ultimate facts.” Id. at 319 (III) (B).
The inquiry is somewhat more complicated in this case because
Franklin was not directly involved in the shootings and instead was
prosecuted as a party to Fitts’s crimes. Conviction as a party to a
crime requires proof that the defendant shared a common criminal
intent with the direct perpetrators of the crime, and a jury may infer
a common criminal intent from the defendant’s presence,
companionship, and conduct with other perpetrators before, during,
31 and after the crimes. Coates v. State, 310 Ga. 94, 98 (849 SE2d 435)
(2020).
In addition, as a matter of Georgia statutory law, “[t]o warrant
a conviction on circumstantial evidence, the proved facts shall not
only be consistent with the hypothesis of guilt, but shall exclude
every other reasonable hypothesis save that of the guilt of the
accused.” OCGA § 24-14-6. Because “not every hypothesis is
reasonable,” the evidence “need not exclude every conceivable
inference or hypothesis — only those that are reasonable.” Carter v.
State, 305 Ga. 863, 868 (2) (828 SE2d 317) (2019) (cleaned up).
“Whether alternative hypotheses are reasonable, however, is
usually a question for the jury, and this Court will not disturb the
jury’s finding unless it is insufficient as a matter of law.” Frazier v.
State, 308 Ga. 450, 453 (2) (a) (841 SE2d 692) (2020).
Here, “[w]hat the evidence produced by the State did not show
were the essential links between [the defendant’s] proven behavior
and the crimes charged.” Clyde v. State, 276 Ga. 839, 839 (584 SE2d
253) (2003) (emphasis in original). Evidence that a co-defendant
32 may have provided information or means to aid in the commission
of a crime is insufficient without further evidence of criminal intent
or knowledge of the criminal plan. See id. at 839-40 (defendant had
motive and purchased the guns used by his cousins to commit
murder but there was no proof he knowingly provided the guns to
his cousins or that he otherwise participated in planning the
crimes); Moore v. State, 255 Ga. 519, 520-21 (1) (340 SE2d 888)
(1986) (insufficient evidence to support one brother’s murder
conviction even though both brothers had motive and fled together
afterward, and even where there was circumstantial evidence of the
brother’s presence at the scene of the crime); Brown v. State, 250 Ga.
862, 864-65 (1) (302 SE2d 347) (1983) (evidence of presence,
association, and even approval but not intent to participate in the
crimes was insufficient).
My review reveals no case where we have affirmed a conviction
as a party to a crime of a defendant who was not present during or
immediately before or after the crimes based on such limited
33 circumstantial evidence as there was here.10 The State’s evidence
against Franklin amounted to a girlfriend calling a boyfriend in the
same time frame as he is committing crimes, Fitts and Franklin
taking the truck used by Fitts for repairs, and Franklin’s denials
that she was involved.11 Moreover, although the jury could have
inferred from the evidence presented that Fitts knew from Franklin
that Calvin would be out of the house on the morning of the murders
and that he kept drugs and money there, the State failed to produce
evidence that Franklin participated in planning the crimes or
benefitted from the proceeds. Thus, as a matter of Georgia statutory
law, this evidence in my opinion is not enough to exclude every
reasonable hypothesis other than guilt. Also, because these basic
10 I also note that the majority does not point to any case in which
the evidence has been found sufficient under similar circumstances. 11 The majority also notes that the jury could have disbelieved
Franklin’s denials of her involvement and that this could be considered direct evidence against her. See Daughtie v. State, 297 Ga. 261, 263 (2) (773 SE2d 263) (2015). But Daughtie made clear that such denials constitute substantive evidence of guilt only if some corroborative evidence exists to support the convictions, and I do not find sufficient corroborative evidence here, particularly with respect to Franklin’s criminal intent. 34 facts proved by the State12 would not allow a rational jury to
reasonably infer that Franklin had the criminal intent to support
her convictions beyond a reasonable doubt, I would conclude that the
evidence was insufficient as a matter of constitutional due process
and that as a result, Franklin’s convictions must be reversed, and
she cannot be retried. See Jefferson v. State, 310 Ga. 725, 726 (854
SE2d 528) (2021) (citing Burks v. United States, 437 U.S. 1, 16-17
(III) (98 SCt 2141, 57 LE2d 1) (1978)).
I am authorized to state that Chief Justice Melton joins this
dissent.
12 Suffice it to say, these kinds of basic facts such as knowing the
whereabouts of your significant other with a third party, phone calls, and taking a vehicle for repairs would not be uncommon in many intimate partner relationships, so I would conclude that a rational jury could not have reasonably inferred Franklin’s criminal intent from this conduct beyond a reasonable doubt. 35 Decided June 1, 2021 — Reconsideration denied July 1, 2021.
Murder. Warren Superior Court. Before Judge
Hammond.
Robert J. Beckwith, for appellant (case no. S21A0159).
Leslie S. Jones, for appellant (case no. S21A0160).
William P. Doupé, District Attorney, Steven T.
Normandia, 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.