305 Ga. 701 FINAL COPY S19A0158. OUTLER v. THE STATE.
BLACKWELL, Justice.
Clifton Leandre Outler was tried by a Jefferson County jury
and convicted of murder, aggravated assault, armed robbery, and
three counts of possession of a firearm during the commission of a
felony, all in connection with the fatal shooting of Anthony Holmes.
Outler appeals, contending that the State failed to present evidence
legally sufficient to sustain his convictions, that the trial court erred
when it allowed a prosecuting attorney to question a witness in the
presence of the jury after the witness invoked his constitutional
privilege against self-incrimination, and that he was denied the
effective assistance of counsel. Upon our review of the record and the
briefs, we find no merit in these claims of error, but we note that the
aggravated assault should have merged with the murder and that
Outler should have been convicted on only one count of possession
of a firearm during the commission of a felony. Accordingly, we vacate the convictions for aggravated assault and two counts of
possession of a firearm during the commission of a felony, and we
otherwise affirm. 1
1. Viewed in the light most favorable to the verdict, the
evidence shows that Outler moved into Holmes’s house in Dublin
around the end of April 2011. Outler was from Wadley (a city south
of Louisville in Jefferson County), and he was the only connection
that Holmes had to Wadley. Holmes told members of his family that
he and Outler were lovers, and — during their brief relationship —
1 Holmes was killed in May 2011. A grand jury indicted Outler and Jeremy Reid in February 2013, charging both with murder, armed robbery, two counts of aggravated assault, and three counts of possession of a firearm during the commission of a felony. Outler alone was tried in May 2013, and the jury found him guilty on all counts. The trial court sentenced Outler to imprisonment for life without the possibility of parole for murder, a consecutive term of imprisonment for twenty years for armed robbery, a concurrent term of imprisonment for twenty years for aggravated assault, and concurrent terms of imprisonment for five years for each of the three counts of unlawful possession of a firearm during the commission of a felony. The trial court merged the other aggravated assault with the murder. Outler filed untimely motions for new trial in November 2015 and July 2016. He then filed a motion for an out-of-time appeal in March 2018, which the trial court granted in April 2018. Outler filed another motion for new trial in May 2018, and the trial court denied that motion in July 2018. Outler filed a timely notice of appeal, and his case was docketed in this Court for the term beginning in December 2018 and submitted for decision on the briefs. Holmes bought clothing for Outler and sometimes allowed Outler to
borrow his cell phone and drive his car.
On May 16, 2011, Holmes’s decomposing body was found near
a creek behind an unoccupied log cabin in Wadley. He had been shot
in the head and repeatedly beaten with a blunt instrument. The
medical examiner testified that Holmes could have survived the
gunshot wound if he had received treatment but that a depression
fracture to his skull, which was caused by the beating, would have
been “devastating” and fatal.
Holmes had last been seen on the morning of May 11 in Dublin,
and it appears that his and Outler’s relationship had soured in the
days preceding his disappearance. On May 9 and 10, Holmes had
been looking at apartments in Macon so that he could leave Dublin
(and Outler), and he had around $6,000 in cash that he planned to
deposit in a new checking account. Meanwhile, Outler was
apparently borrowing Holmes’s car without permission, and on May
9, Outler provided his cousin Jeremy Reid with a check on Holmes’s
(old) checking account and asked Reid to cash it for him (although Reid testified that he refused to do so). And Outler made several
inquiries with acquaintances in Wadley about where he could obtain
a gun. On the evening of May 10, a Dublin police officer conducted a
traffic stop of Holmes’s vehicle as it pulled into Holmes’s driveway.
Outler was the sole occupant, and — after Outler exited the car —
the officer observed that Outler had a RG-22 revolver in his pocket.
Holmes came outside and told the officer that Outler was only
supposed to be washing the car that day, not driving it. But Outler
had run off behind the house, and the officer did not pursue him.
While Holmes’s activities after his May 10 conversation with
the police officer are largely unknown, Outler was seen in numerous
locations throughout Wadley on May 11. That afternoon, Outler and
his brother Antoine Brown were picked up by Brown’s girlfriend,
who was accompanied by her niece and her niece’s daughter. Outler
directed the girlfriend to drive to the cabin by the creek where
Holmes’s body was later found. Outler went behind the cabin for
around ten minutes before returning (without explanation) to the
girlfriend’s SUV. The girlfriend then drove Outler and Brown from Wadley to Swainsboro to do some shopping. On the way there,
Outler and Brown were both “flashing” large amounts of cash, and
Brown later told his girlfriend that he had $6,000.
On May 18, police officers conducted a search of the home of
Outler and Brown’s mother, and they found clothes that had been
soaked in bleach, two empty bottles of bleach, and several .22-caliber
bullets in a drawer. Soon thereafter, Brown told police that Outler
had asked for his help to “hit a lick” and later said that he had
committed a robbery and had to “off” someone. Phone records
established that Holmes’s phone was taken to Wadley on the
morning of May 11 and to Swainsboro that afternoon, with
numerous calls made from that phone to Outler’s friends and family,
including 19 calls to Brown.
(a) Outler complains that the evidence presented at trial is
insufficient to sustain his convictions because it was only
circumstantial but failed to exclude every reasonable hypothesis
other than his guilt. See OCGA § 24-14-6 (“[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”). But not
every hypothesis is a reasonable one, and the evidence “need not
exclude every conceivable inference or hypothesis — only those that
are reasonable.” Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d
855) (2009) (emphasis in original). Whether an alternative
hypothesis raised by the defendant is “reasonable” is a question
committed principally to the jury, “and where the jury is authorized
to find that the evidence, though circumstantial, was sufficient to
exclude every reasonable hypothesis save that of the guilt of the
accused, we will not disturb that finding unless it is insupportable
as a matter of law.” Carter v. State, 276 Ga. 322, 323 (577 SE2d 787)
(2003).
At trial, Outler argued that it was Brown who killed Holmes.
But there was no evidence that Brown ever met Holmes or had even
been to Dublin (where Holmes lived). And Holmes’s only connection
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305 Ga. 701 FINAL COPY S19A0158. OUTLER v. THE STATE.
BLACKWELL, Justice.
Clifton Leandre Outler was tried by a Jefferson County jury
and convicted of murder, aggravated assault, armed robbery, and
three counts of possession of a firearm during the commission of a
felony, all in connection with the fatal shooting of Anthony Holmes.
Outler appeals, contending that the State failed to present evidence
legally sufficient to sustain his convictions, that the trial court erred
when it allowed a prosecuting attorney to question a witness in the
presence of the jury after the witness invoked his constitutional
privilege against self-incrimination, and that he was denied the
effective assistance of counsel. Upon our review of the record and the
briefs, we find no merit in these claims of error, but we note that the
aggravated assault should have merged with the murder and that
Outler should have been convicted on only one count of possession
of a firearm during the commission of a felony. Accordingly, we vacate the convictions for aggravated assault and two counts of
possession of a firearm during the commission of a felony, and we
otherwise affirm. 1
1. Viewed in the light most favorable to the verdict, the
evidence shows that Outler moved into Holmes’s house in Dublin
around the end of April 2011. Outler was from Wadley (a city south
of Louisville in Jefferson County), and he was the only connection
that Holmes had to Wadley. Holmes told members of his family that
he and Outler were lovers, and — during their brief relationship —
1 Holmes was killed in May 2011. A grand jury indicted Outler and Jeremy Reid in February 2013, charging both with murder, armed robbery, two counts of aggravated assault, and three counts of possession of a firearm during the commission of a felony. Outler alone was tried in May 2013, and the jury found him guilty on all counts. The trial court sentenced Outler to imprisonment for life without the possibility of parole for murder, a consecutive term of imprisonment for twenty years for armed robbery, a concurrent term of imprisonment for twenty years for aggravated assault, and concurrent terms of imprisonment for five years for each of the three counts of unlawful possession of a firearm during the commission of a felony. The trial court merged the other aggravated assault with the murder. Outler filed untimely motions for new trial in November 2015 and July 2016. He then filed a motion for an out-of-time appeal in March 2018, which the trial court granted in April 2018. Outler filed another motion for new trial in May 2018, and the trial court denied that motion in July 2018. Outler filed a timely notice of appeal, and his case was docketed in this Court for the term beginning in December 2018 and submitted for decision on the briefs. Holmes bought clothing for Outler and sometimes allowed Outler to
borrow his cell phone and drive his car.
On May 16, 2011, Holmes’s decomposing body was found near
a creek behind an unoccupied log cabin in Wadley. He had been shot
in the head and repeatedly beaten with a blunt instrument. The
medical examiner testified that Holmes could have survived the
gunshot wound if he had received treatment but that a depression
fracture to his skull, which was caused by the beating, would have
been “devastating” and fatal.
Holmes had last been seen on the morning of May 11 in Dublin,
and it appears that his and Outler’s relationship had soured in the
days preceding his disappearance. On May 9 and 10, Holmes had
been looking at apartments in Macon so that he could leave Dublin
(and Outler), and he had around $6,000 in cash that he planned to
deposit in a new checking account. Meanwhile, Outler was
apparently borrowing Holmes’s car without permission, and on May
9, Outler provided his cousin Jeremy Reid with a check on Holmes’s
(old) checking account and asked Reid to cash it for him (although Reid testified that he refused to do so). And Outler made several
inquiries with acquaintances in Wadley about where he could obtain
a gun. On the evening of May 10, a Dublin police officer conducted a
traffic stop of Holmes’s vehicle as it pulled into Holmes’s driveway.
Outler was the sole occupant, and — after Outler exited the car —
the officer observed that Outler had a RG-22 revolver in his pocket.
Holmes came outside and told the officer that Outler was only
supposed to be washing the car that day, not driving it. But Outler
had run off behind the house, and the officer did not pursue him.
While Holmes’s activities after his May 10 conversation with
the police officer are largely unknown, Outler was seen in numerous
locations throughout Wadley on May 11. That afternoon, Outler and
his brother Antoine Brown were picked up by Brown’s girlfriend,
who was accompanied by her niece and her niece’s daughter. Outler
directed the girlfriend to drive to the cabin by the creek where
Holmes’s body was later found. Outler went behind the cabin for
around ten minutes before returning (without explanation) to the
girlfriend’s SUV. The girlfriend then drove Outler and Brown from Wadley to Swainsboro to do some shopping. On the way there,
Outler and Brown were both “flashing” large amounts of cash, and
Brown later told his girlfriend that he had $6,000.
On May 18, police officers conducted a search of the home of
Outler and Brown’s mother, and they found clothes that had been
soaked in bleach, two empty bottles of bleach, and several .22-caliber
bullets in a drawer. Soon thereafter, Brown told police that Outler
had asked for his help to “hit a lick” and later said that he had
committed a robbery and had to “off” someone. Phone records
established that Holmes’s phone was taken to Wadley on the
morning of May 11 and to Swainsboro that afternoon, with
numerous calls made from that phone to Outler’s friends and family,
including 19 calls to Brown.
(a) Outler complains that the evidence presented at trial is
insufficient to sustain his convictions because it was only
circumstantial but failed to exclude every reasonable hypothesis
other than his guilt. See OCGA § 24-14-6 (“[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”). But not
every hypothesis is a reasonable one, and the evidence “need not
exclude every conceivable inference or hypothesis — only those that
are reasonable.” Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d
855) (2009) (emphasis in original). Whether an alternative
hypothesis raised by the defendant is “reasonable” is a question
committed principally to the jury, “and where the jury is authorized
to find that the evidence, though circumstantial, was sufficient to
exclude every reasonable hypothesis save that of the guilt of the
accused, we will not disturb that finding unless it is insupportable
as a matter of law.” Carter v. State, 276 Ga. 322, 323 (577 SE2d 787)
(2003).
At trial, Outler argued that it was Brown who killed Holmes.
But there was no evidence that Brown ever met Holmes or had even
been to Dublin (where Holmes lived). And Holmes’s only connection
to Wadley (where his body was found), was Outler, not Brown. In
addition, within two weeks of moving in with Holmes, Outler asked at least two people about getting a firearm, was seen by a police
officer with a firearm just before Holmes was killed, and was using
Holmes’s car without permission and attempting to access funds in
Holmes’s checking account. And it was Outler (not Brown) who
directed Brown’s girlfriend to drive him to the murder scene, where
his activities behind the cabin were never explained (except by
Brown, who said that Outler told him that he had been having sex
with a “lady” in the cabin and thought he had left something there).
The jury was authorized to reject Outler’s hypothesis that Brown
killed Holmes (especially without Outler’s participation). And the
evidence was sufficient to authorize the jury to find Outler guilty of
the crimes for which he was convicted. See Jackson v. Virginia, 443
U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
(b) Although the jury was authorized by the evidence to find
Outler guilty of an aggravated assault upon Holmes with a firearm,
the trial court erred when it failed to merge this aggravated assault
with the murder. Merger generally is required when there is no
deliberate interval between the non-fatal injury that forms the basis for aggravated assault (here, the shooting) and the fatal injury that
forms the basis for the murder (here, the beating). See Alvelo v.
State, 290 Ga. 609, 611-612 (2) (724 SE2d 377) (2012). In this case,
there was no evidence at all of a deliberate interval between the
shooting and the beating. Accordingly, the conviction and sentence
for aggravated assault with a firearm must be vacated. See Battle v.
State, 305 Ga. 268, 272 (1) (c) (824 SE2d 335) (2019).
We also conclude that the trial court erred when it convicted
and sentenced Outler on three counts of possession of a firearm
during the commission of a felony. The indictment charged Outler
with unlawfully possessing a firearm during the commission of the
murder, armed robbery, and aggravated assault. But
where multiple crimes are committed together
during the course of one continuous crime spree, a
defendant may be convicted once for possession of a
firearm during the commission of a crime as to every
individual victim of the crime spree, as provided under
OCGA § 16-11-106 (b) (1), and additionally once for firearm possession for every crime enumerated in
[paragraphs] (b) (2) through (5).
State v. Marlowe, 277 Ga. 383, 386 (2) (c) (589 SE2d 69) (2003).
Here, the murder, armed robbery, and aggravated assault were all
part of one continuous crime spree involving a single victim, and
Outler was not convicted of any crimes enumerated in paragraphs
(b) (2)-(5) of OCGA § 16-11-106. As a result, OCGA § 16-11-106 (b)
authorizes only one conviction and sentence for possession of a
firearm during the commission of a felony in this case, and we vacate
Outler’s convictions and sentences for the unlawful possession of a
firearm during the commission of armed robbery and aggravated
assault.
2. Outler claims that his rights under the Confrontation Clause
were violated when the prosecuting attorney continued questioning
Reid about a statement that Reid had given to an investigator even
after Reid invoked his privilege against self-incrimination under the
Fifth Amendment. Outler asserts that this continued questioning
essentially allowed the prosecuting attorney to testify for Reid about matters on which he could not be cross-examined. See Lingerfelt v.
State, 235 Ga. 139, 139-140 (218 SE2d 752) (1975) (finding trial
court erred when it allowed the State “to ask leading questions”
about a pre-trial statement of a co-indictee who had invoked his
right to silence at trial, which allowed the State to present “the
content of the previous [statement] . . . without the benefit of cross[-
]examination by the appellant”). See also McIntyre v. State, 266 Ga.
7, 11 (5) (463 SE2d 476) (1995) (“[w]hat is harmful is for the trial
court to allow the State, once a witness has invoked his Fifth
Amendment rights, in effect, to testify for the witness and
circumvent meaningful cross-examination as to obvious inferences”
(citation and punctuation omitted)).
In this case, however, the prosecuting attorney did not ask
leading questions of Reid that allowed the State effectively to
present the content of Reid’s prior statement. Reid first invoked his
privilege against self-incrimination when the prosecuting attorney
asked Reid if he had lied when he told the investigator that he had
seen Outler with Holmes on the morning of May 11. But by that point, Reid had already testified that he had made the statement in
question to the investigator, and he also had already testified that
(notwithstanding his statement) he had not, in fact, seen the two
men that morning. The substance of his testimony on these points
was not revealed for the first time by the question that immediately
preceded his invocation of the privilege. And the only other
questions about the statement that Reid subsequently refused to
answer were whether he had told the investigator if he saw who
killed Holmes and whether he told the investigator anything else.
Neither of those were leading questions with “obvious inferences”
that allowed the State to present the content of Reid’s statement to
the investigator. As a result Outler’s rights under the Confrontation
Clause were not violated, and this claim has no merit.
3. Finally, Outler alleges that his trial counsel was ineffective
when he failed to object to the redirect-examination of a witness
about a “rumor” that the prosecuting attorney claimed to have
heard. To prevail on a claim of ineffective assistance, Outler must
prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. See Strickland v.
Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To prove that the performance of his lawyer was deficient,
Outler must show that the lawyer performed her duties at trial in
an objectively unreasonable way, considering all the circumstances,
and in the light of prevailing professional norms. Id. at 687-688 (III)
(A). See also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106
SCt 2574, 91 LE2d 305) (1986). And to prove that he was prejudiced
by the performance of his lawyer, Outler must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U. S. at 694 (III) (B). This burden is a
heavy one, see Kimmelman, 477 U. S. at 382 (II) (C), and we
conclude that Outler has failed to carry it.
Here, after the witness at issue testified that Outler came to
his house in Wadley on May 11, the prosecuting attorney said that
there “was a rumor, and this is a rumor, . . . that Mr. Outler had brought the gun to you that day . . . and asked you to take it to
Atlanta to get rid of it.” The prosecuting attorney then asked the
witness if the rumor was true, and the witness said that it was not.
Outler now contends that his trial lawyer should have objected to
the question about the rumor. But the lawyer testified at the hearing
on Outler’s motion for new trial that she did not object because she
knew that the witness would say that the rumor was untrue, and
she thought it was in Outler’s interest for the State to solicit
testimony about the fallacy of the rumor. Indeed, in her closing,
Outler’s lawyer was able to argue that the “rumor” cited by the State
did not make any sense: “it costs too much in gas to drive all the way
to Atlanta to get rid of a cheap old gun.” And the prosecuting
attorney acknowledged in his closing that he “suspect[ed] that
[Outler’s lawyer]’s right, that you wouldn’t drive to Atlanta to get
rid of a gun. That would seem foolish.” Outler has not shown that
his lawyer’s strategy was unreasonable, and he has failed to
establish ineffective assistance in this regard. Judgment affirmed in part and vacated in part. All the Justices
concur.
Decided April 29, 2019.
Murder. Jefferson Superior Court. Before Judge Palmer.
David J. Walker, for appellant.
S. Hayward Altman, District Attorney, Kelly A. Jenkins, Tony
A. May, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Michael A.
Oldham, Assistant Attorney General, for appellee.