317 Ga. 87 FINAL COPY
S23A0588. MORRIS v. THE STATE.
COLVIN, Justice.
Appellant Jerrontae Morris was convicted of malice murder
and related crimes in connection with the November 2015 shooting
of a vehicle occupied by Anthony Lundy and Demeco Person, which
fatally wounded Lundy.1 On appeal, Appellant contends that the
1 The crimes occurred on November 16, 2015. In April 2016, a Fulton County grand jury indicted Appellant and his co-defendant, Allen Jones, in a nine-count indictment. On September 27, 2016, the grand jury issued a superseding indictment, which added counts against Percy Small and Cardeall Lackey. Appellant, Jones, and Small were charged with the malice murder of Lundy (Count 1), the felony murder of Lundy predicated on aggravated assault and criminal damage to property (Counts 2 & 3), the aggravated assault of Lundy (Count 7), the aggravated assault of Person (Count 8), criminal damage to property (Count 9), and possession of a firearm during the commission of a felony (Count 10). Appellant and Small were also charged with the felony murder of Lundy predicated on possession of a firearm by a convicted felon (Count 4 – Appellant, Counts 5 & 6 – Small) and possession of a firearm by a convicted felon (Count 13 – Appellant, Counts 14 & 15 – Small). Lackey was indicted for tampering with evidence (Count 11) and making false statements (Count 12) but was not charged with participating in the murder or the aggravated assaults. Appellant was jointly tried before a jury with Jones and Small from October 15 through 25, 2019. The jury found Appellant guilty of all counts. The jury acquitted Small and Jones of the murder charges but found them guilty of two counts of aggravated assault and one count of possession of a firearm during the commission of a felony. The jury also found evidence was insufficient as a matter of constitutional due process
to sustain his conviction for malice murder because the State failed
to prove that Appellant proximately caused the victim’s death and
did not prove that Appellant either conspired with his co-defendants
to commit the crime or was a party to the crime. Appellant also
contends that the evidence was insufficient as a matter of Georgia
statutory law to sustain his conviction for malice murder because
the trial evidence was circumstantial and the State failed to exclude
every reasonable hypothesis other than his guilt.2 We affirm for the
Small guilty of two counts of possession of a firearm by a convicted felon. Appellant was sentenced as a recidivist, pursuant to OCGA § 17-10-7 (a) & (c), to life in prison without parole for malice murder (Count 1), 20 years consecutive for the aggravated assault of Person (Count 8), ten years consecutive for criminal damage to property (Count 9), ten years consecutive for possession of a firearm during the commission of a felony (Count 10), and five years consecutive for possession of a firearm by a convicted felon (Count 13). All remaining counts were either vacated by operation of law or merged for sentencing purposes. Appellant filed a timely motion for new trial on November 5, 2019, which was amended through new counsel on September 20, 2022. After a hearing, the trial court denied the motion as amended on December 15, 2022. Appellant filed a timely notice of appeal. The case was docketed to this Court’s April 2023 term, and oral argument was held on May 17, 2023. 2 Appellant also challenges the sufficiency of the evidence supporting his
felony murder charges. However, because the felony murder counts were vacated as a matter of law, Appellant’s claims as to the felony murder counts are moot. See Snipes v. State, 309 Ga. 785, 788 (1) n.2 (848 SE2d 417) (2020).
2 reasons set forth below.
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed the following. On the evening of November
16, 2015, Person drove Lundy in Person’s work vehicle, a white
Dodge Caravan, to a birthday party in the College View Hills
apartment complex in College Park. Although Lundy had been to
the apartment earlier that day, Lundy and Person had trouble
finding the apartment once they approached the complex because “it
was too dark.” As Lundy and Person continued “riding around” the
apartment complex looking for the apartment, they passed a crowd
of people standing together outside and then saw “a dude standing
in the middle of the street” blocking their path. Person stopped the
vehicle because the man “gave . . . a look like he didn’t want to get
out of the street.” Person then recognized the man as Allen Jones,
with whom he had played football when they were younger. Jones
walked along the driver’s side, “look[ed] in the van,” and “look[ed]
“We thus limit our review to the sufficiency of the evidence presented at trial regarding the malice murder count.” Id. 3 dead at [Person].” Jones never said anything, and Person and
Lundy then “rolled off” in the van. Person drove around the block to
“look for a parking spot” and came upon a church located across the
street from the apartment complex. Person parked in the church’s
empty parking lot because he felt uneasy and “didn’t want to park
in the apartments, period.”
Person and Lundy exited the van and began walking toward
the apartment complex to look for the apartment. As they were
looking for the apartment, a man from across the street, later
identified by officers as Reco Smith, started “talk[ing] loud[ly]” to
them, asking, “Y’all straight, y’all good, y’all lo[st]?” Person
responded, “We straight, appreciate it,” and told Lundy that they
should “get [back] to the van.”
Once Person and Lundy returned to the van, Lundy convinced
Person to try again to find the apartment. Person drove them back
through the complex and stopped for “a hot second” in front of one of
the apartments located at the intersection of Atlanta Street and
Simmons Avenue. Person then heard multiple gunshots, heard
4 Lundy scream, and saw Lundy “grab his neck” and “start[ ] rocking
back and forth.” Person began driving as “fast as [he] c[ould]” away
from the apartment complex. As Person drove away, he called 911
to report that Lundy had been shot. The 911 operator directed
Lundy to drive to a nearby convenience store, and officers were
dispatched to the location.
Upon arriving at the store, officers found Lundy slouched in
the front passenger seat of the van. Lundy was “not conscious, not
breathing, and not responsive.” In Lundy’s hand was his phone,
which showed the GPS directions to the apartment where the
birthday party was taking place. The State’s medical examiner later
testified that Lundy’s cause of death “was a gunshot wound of the
right arm into the chest.” Officers observed that the van had a bullet
defect and a shattered right rear window, which Person’s employer
later confirmed was “new damage.” Person told officers that he had
not seen the shooter but reported seeing Jones in the middle of the
road right before the shooting occurred.
The College Park Police Department received several calls that
5 evening between 7:30 and 8:00, reporting that bullets had been fired
at the intersection of Atlanta Street and Simmons Avenue.
Witnesses reported hearing “about 10 to 12” gunshots that were
fired from multiple guns because the sounds of the gunshots “were
not consistent” and some shots were “not as loud” as others.
Witnesses also reported seeing the white van leave the apartment
complex immediately after the gunshots occurred. However, many
of the witnesses were unwilling to identify themselves and would
only speak “off record.”
Based on several anonymous sources, officers were able to
identify Percy Small as a person of interest in the shooting.
Detective Jermeir Jackson Stroud interviewed Small a total of three
times. Small gave inconsistent reports about his involvement in the
shooting. But, in his third interview, which was video-recorded and
played for the jury, Small admitted that, right before the shooting,
he had been standing outside Jones’s grandmother’s apartment
with a group of people “chillin[g],” “smoking,” and “drinking,” when
he saw the white van drive through the complex. According to
6 Small, Smith then drove by and warned the crowd to “be careful” of
the men in the white van because they were “in all black” and
“look[ed] like they [were] trying to rob or something.”3 Small then
asked Cardeall Lackey, who was in the crowd, to borrow his “.40 or
.45” caliber handgun, before walking toward the van with Appellant,
Jones, and Dejuan Grier. The men saw the van stop in the middle
of the street at the intersection of Atlanta Street and Simmons
Avenue, like the drivers “ain’t know which way they wanted to go,
like they was lost or whatever.” Small stated that he then fired
warning shots “in the air about two times,” but that “[Appellant] just
. . . went loose” shooting at the van. Small further stated that the
fatal bullet “had to come from [Appellant’s] gun.” Small told
Detective Stroud that he thought Grier had with him a “.38 special,”
but he “c[ouldn’t] really say” whether Grier “shot or not,” and that
Appellant, Grier, and Jones all had guns that looked “the same.”
Small also stated that, the day after the shooting, Appellant told him
3 On the night of the shooting, Lundy was wearing dark blue jeans and
a black hooded sweatshirt. Person was wearing black pants and a black sweatshirt. 7 that the men in the van “shouldn’t a been coming through here like
that. . . . They come up here again [indiscernible], I’ll do it again.”
Moreover, Small stated that, during this conversation, Appellant
mentioned that, after the shooting, Grier was “fired up” about
someone “ow[ing] him some money.”4
Detective Stroud also interviewed Grier. During the interview,
which was video-recorded and played for the jury, Grier stated that,
right before the shooting, he was near the intersection of Atlanta
Street and Simmons Avenue with Appellant, Small, and Jones when
he saw the van stop. Grier then saw Small and Jones “start[ ]
shooting in the air,” while Appellant “ran[ ] up on the van, and
started shooting.” Grier admitted that he “pull[ed] [his] gun out”
and “tr[ied] to fire in the air” but said that the gun “didn’t fire”
because it “really didn’t work.” Grier stated that, right after the
shooting occurred, he saw the man who sold him the gun and started
“fussing and cussing” and asking the man for “[his] money back.”
4 Small provided a written statement consistent with his verbal account
of events. 8 Grier further stated that he “loved” Appellant “like [his] little
brother,” but that, “if anybody shot [Lundy], it was [Appellant]”
because Appellant “was the closest [to the van]” and “the only one
[who] could’ve been accurate enough to hit [the van].”5
Appellant was arrested on February 3, 2016, at which time
Detective Stroud interviewed him about his involvement in the
shooting. Appellant denied any involvement, stating that he heard
the gunshots while he was inside his house playing video games and
talking on the phone with a man he referred to as “Uncle Frank,”
whom Detective Stroud later identified as Franklin Pippins.
However, the State introduced into evidence Appellant’s cell phone
records, which revealed that he was not on the phone with Pippins
at the time of the shooting. Appellant further stated in his interview
that his brother had previously traveled out of town and left
Appellant with a “little .38 revolver,” but Appellant claimed that his
brother “actually got the gun [back] before [the shooting] even
5 Although Grier recanted his pretrial statements at trial, the State introduced a written statement Grier provided at the time of his interview, which was consistent with his interview statements. 9 happened.”
Appellant made several calls while incarcerated at the Fulton
County jail, which were recorded and played for the jury. During a
phone call with his mother, Appellant stated that his friend, Jahmi,
who Detective Stroud later identified as Jahmi Thompson, was
holding “two guns” for him — “a .357 . . . Ruger” and “a revolver.”
Detective Stroud later received the Ruger .357 Magnum from
Thompson’s attorney. However, the revolver Appellant referenced
in his call was never recovered.
The State’s ballistics expert testified that the bullet retrieved
during Lundy’s autopsy was a “.38 class” that could have been fired
from several different firearm models, including “a .38 special and
.357 Magnum revolver.” However, she determined that the
retrieved bullet “could not have been fired” from the recovered Ruger
.357 Magnum because the bullet and Ruger contained “two different
types of rifling.”
2. Appellant contends that the evidence was insufficient as a
matter of constitutional due process to sustain his conviction for
10 malice murder because the State failed to prove that Appellant
proximately caused the victim’s death or that Appellant either
conspired with his co-defendants to commit the crime or was a party
to the crime. According to Appellant, because the State’s ballistics
expert testified that Appellant’s Ruger .357 Magnum did not fire the
fatal bullet, Appellant’s act of shooting could not have been the
proximate cause of Lundy’s death. Therefore, Appellant argues, the
State had to prove either that Appellant conspired with his co-
defendants to commit the murder or that Appellant was a party to
the crime, which it failed to do. Appellant’s claim fails because there
was sufficient evidence for the jury to conclude that Appellant fired
the fatal bullet and thus that Appellant’s act of shooting at the van
was the proximate cause of Lundy’s death.
When evaluating the sufficiency of evidence as a matter of
constitutional due process, the proper standard of review is whether
a rational trier of fact could have found the defendant guilty beyond
a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307, 319 (III)
(B) (99 SCt 2781, 61 LE2d 560) (1979). This Court will uphold the
11 jury’s guilty verdict “[a]s long as there is some competent evidence,
even if contradicted, to support each fact necessary to make out the
State’s case.” Scott v. State, 309 Ga. 764, 766 (1) (848 SE2d 448)
(2020) (citation and punctuation omitted). To sustain a conviction
for malice murder, the State must prove beyond a reasonable doubt
that the defendant’s actions were the proximate cause of the victim’s
death. See Taylor v. State, 303 Ga. 624, 627 (1) (814 SE2d 353)
(2018) (“Proximate cause is the causation standard for murder
cases.”).
Where one inflicts an unlawful injury, such injury is to be accounted as the efficient, proximate cause of death, whenever it shall be made to appear, either that (1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a pre-existing cause.
Stribling v. State, 304 Ga. 250, 253 (1) (818 SE2d 563) (2018)
(citation and punctuation omitted). “[W]hat constitutes proximate
cause is undeniably a jury question and is always to be determined
on the facts of each case upon mixed considerations of logic, common
12 sense, justice, policy, and precedent.” Robinson v. State, 298 Ga.
455, 458 (1) (782 SE2d 657) (2016) (citation and punctuation
omitted).
Here, the trial evidence was sufficient to authorize the jury to
conclude that Appellant proximately caused Lundy’s death by firing
the fatal bullet. The jury viewed video recordings from the
interviews of Small and Grier, during which they stated that the
fatal bullet “had to be fired from [Appellant’s] gun” because he “was
the closest to the van,” “had a better shot than anybody,” and, unlike
Small and Jones, “went loose,” shooting at the van rather than “in
the air.” Moreover, although the trial evidence established that
Appellant’s Ruger .357 Magnum did not fire the .38 caliber bullet
that killed Lundy, the jury was aware of Appellant’s own statements
that he had both a “Ruger” and a “revolver,” which he said he had
given to Thompson before being arrested, and that, at some point in
time, he had his brother’s “little .38 revolver.” Thus, the jury was
authorized to disbelieve Appellant’s theory that he did not fire the
fatal shot and instead conclude that Appellant’s action of firing at
13 the van proximately caused Lundy’s death. See Byron v. State, 303
Ga. 218, 219 (1) (a), (b) (811 SE2d 296) (2018) (jury authorized to
disbelieve the defendant’s theory that “he was not the shooter” and
find that he killed the victim, where witnesses “saw [the defendant]
shoot at the victim” and “saw [the defendant] carrying the kind of
gun that killed the victim”). Moreover, because the jury was
authorized to conclude that Appellant fired the bullet that caused
Lundy’s death, the State was not required to prove that Appellant
acted in concert with his co-defendants as a party to the crime. See
OCGA § 16-2-20 (b) (1) (providing that a person is concerned in the
commission of a crime if he “[d]irectly commits the crime”). Nor was
the State required to prove that Appellant conspired with his co-
defendants to commit Lundy’s murder as Appellant was not charged
with conspiracy, and conspiracy is not an essential element of malice
murder. See OCGA § 16-5-1 (a), (b). See also Romer v. State, 293
Ga. 339, 341 (1) (b) (745 SE2d 637) (2013) (explaining that the State
is only required to prove the essential elements of the charged
crime).
14 3. Appellant also contends that the evidence was insufficient
as a matter of Georgia statutory law to sustain his conviction for
malice murder because the evidence did not exclude all reasonable
hypotheses other than Appellant’s guilt. Specifically, Appellant
argues that the State was required to prove that Grier’s revolver,
which Small identified as a .38 special, was not the gun from which
the fatal bullet was fired. Appellant’s claim fails.
“To 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. However, “not every
hypothesis is a reasonable one, and the evidence need not exclude
every conceivable inference or hypothesis — only those that are
reasonable.” Graves v. State, 306 Ga. 485, 487 (1) (831 SE2d 747)
(2019) (citation and punctuation omitted; emphasis in original).
“Whether alternative hypotheses are reasonable . . . is principally a
question for the jury, and this Court will not disturb the jury’s
finding unless it is insupportable as a matter of law.” Robinson v.
15 State, 309 Ga. 729, 731 (1) (a) (848 SE2d 441) (2020).
Here, even assuming that Appellant’s conviction for malice
murder was based solely on circumstantial evidence and thus that
the trial evidence needed to exclude every reasonable hypothesis
other than Appellant’s guilt to sustain his murder conviction, we
conclude that the jury was authorized to reject as unreasonable
Appellant’s alternative hypothesis that Grier fired the fatal bullet.
The jury heard both Grier’s and Small’s interview statements that
Appellant was the “closest” person to the van, and that, unlike Small
and Jones, Appellant shot at the vehicle rather than in the air. The
jury also heard Grier’s statement that he attempted to shoot his
revolver in the air but that his gun would not fire. Further, the jury
heard Grier’s statement that, after the shooting, he was “fussing and
cussing” at the man who sold him the gun, asking for “[his] money
back” because “t[he] gun wouldn’t work.” That statement was
consistent with Small’s statement that, according to Appellant,
Grier was “fired up” after the shooting about someone owing him
money. Consequently, the trial evidence authorized the jury to
16 reject as unreasonable Appellant’s only alternative hypothesis —
that Grier fired the fatal bullet. Accordingly, this claim fails.
Judgment affirmed. All the Justices concur.
Decided August 21, 2023.
Murder. Fulton Superior Court. Before Judge Farmer.
Lee & Ziegler, Konrad G. W. Ziegler, for appellant.
Fani T. Willis, District Attorney, Kevin C. Armstrong, Ruth M.
Pawlak, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Beth A. Burton, Deputy Attorney General, Paula K. Smith,
Senior Assistant Attorney General, Elizabeth C. Rosenwasser,
Assistant Attorney General, for appellee.