In the Supreme Court of Georgia
Decided: June 6, 2016
S16A0190. ANDERSON v. THE STATE.
BLACKWELL, Justice.
Darrell Anderson was tried by a Dougherty County jury and convicted of
felony murder and the unlawful possession of a firearm during the commission
of a felony in connection with the fatal shooting of Jack Camp. Anderson
appeals, contending that the evidence is insufficient to sustain his convictions
and that the trial court erred when it charged the jury about the unlawful
possession of a firearm during the commission of a felony. We find no error and
affirm.1
1
Camp was killed on March 14, 2007. A Dougherty County grand jury indicted
Anderson, Dontavius Wilson, and Christopher Ingram on April 28, 2010 and charged them
with malice murder, two counts of felony murder (one predicated on the possession of
cocaine with the intent to distribute and the other predicated on aggravated assault),
conspiracy to commit murder, aggravated assault, and the unlawful possession of a firearm
during the commission of a felony. The men were tried jointly, and their trial began on
November 8, 2010. The jury returned its verdict four days later, finding Wilson guilty of all
charges, and finding Anderson and Ingram guilty of all charges except malice murder. On
December 13, 2010, Anderson was sentenced to imprisonment for life for felony murder
predicated on the possession of cocaine with the intent to distribute and a consecutive term
of imprisonment for five years for the unlawful possession of a firearm. The verdict as to
1. Viewed in the light most favorable to the verdict, the evidence shows
that, around 1:00 on the morning of March 14, 2007, Camp was shot and killed
while working as a security guard at the Regency Club Apartments in Albany.
Just before he was shot, Camp called 911 to ask for assistance with some
“subjects,” and the dispatcher heard a male voice in the background say, “oh
hell, he’s calling the police.”
When law enforcement arrived at the apartment complex, a resident who
had been walking through the complex at the time that Camp was shot provided
a statement that identified Anderson, Dontavius Wilson (who was Anderson’s
cousin), Christopher Ingram, Luke Sears, and Kentrell Barney. When
investigators interviewed Anderson, Wilson, and Ingram, they gave almost
identical statements, all purporting to know nothing about the killing. Anderson
added that he had “never ever” been to the Regency Club Apartments. Sears
initially denied knowledge of the killing as well, and he provided an alibi for
felony murder predicated on aggravated assault was vacated by operation of law, see
Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993), and the conspiracy to
commit murder and aggravated assault merged with the murder for which Anderson was
convicted and sentenced. Anderson timely filed a motion for new trial on December 29,
2010, and he amended it on March 13, 2013. The trial court denied his motion on June 8,
2015, and Anderson timely filed a notice of appeal on July 7, 2015. The case was docketed
in this Court for the January 2016 term and submitted for decision on the briefs.
2
Anderson, Wilson, and Ingram. But after Sears was arrested for providing a
false statement, he agreed to come clean.
Sears then gave a second statement to investigators, which was generally
consistent with the testimony he provided at trial. Sears said that, at around 7:00
on the evening of March 13, he went to drink and smoke marijuana with
Anderson, Wilson, Ingram, and Barney at the home of Wilson’s girlfriend. At
one point, Sears saw Ingram pull out a revolver, and he saw the other men
“horsing around” with it. All five men then went to a trailer park, and they drank
and smoked marijuana there until Wilson received a phone call. The men then
went to the Regency Club Apartments in separate cars — with Sears and Barney
riding with Wilson, and Ingram riding with Anderson — so that Anderson,
Wilson, and Ingram could sell crack.
Sears testified that the men parked their cars by a ballfield near the
apartment complex. After the other men walked away, Sears remained in
Wilson’s burgundy Impala and soon fell asleep. Sears claimed that he awoke to
the sound of gunshots, and Wilson returned to the Impala and put down a
revolver that looked like the one Sears had seen earlier that night. Sears said that
— as the men started their separate cars — he jumped out of the Impala, saw
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Camp’s body, and ran through the ballfield and the campus of Dougherty High
School. When he saw Wilson drive up, he got back into the Impala, and Wilson
told him, “[y]ou ain’t seen nothing,” and “[y]ou don’t know nothing.”
According to Sears, Wilson drove him back to the home of Wilson’s
girlfriend. When Anderson and Ingram arrived soon thereafter, Wilson
approached them and handed Ingram what Sears thought was the revolver. Sears
testified that he then heard Anderson say, “I told the n****** the man was
going to call the police, and we just went to dumping.”2 Sears testified that the
men all went back to the trailer park, subsequently visited a Waffle House, and
finally parted ways later in the morning.
On appeal, Anderson claims that his convictions cannot be sustained
because the only evidence of his guilt came from Sears. Former OCGA § 24-4-8
provided that, in “felony cases where the only witness is an accomplice, the
testimony of a single witness is not sufficient [to establish a fact]. Nevertheless,
corroborating circumstances may dispense with the necessity for the testimony
2
Sears also testified that “dumping” was slang for shooting.
4
of a second witness, except in prosecutions for treason.”3 The evidence
necessary to corroborate an accomplice’s testimony under former OCGA §
24-4-8 “may be circumstantial, it may be slight, and it need not of itself be
sufficient to warrant a conviction of the crime charged,” but it “must directly
connect the defendant with the crime, or lead to the inference that he is guilty.”
McKibbins v. State, 293 Ga. 843, 846 (1) (750 SE2d 314) (2013) (citation
omitted). Here, the trial court informed the jury about the requirements of
former OCGA § 24-4-8, and the jury was properly instructed that it was for the
jury to determine whether Sears was an accomplice. Even if the jury determined
that Sears, in fact, was an accomplice, we find that Sears’s testimony about
Anderson’s guilt was amply corroborated by other evidence.
Sears’s testimony about Anderson’s specific involvement in the crimes
was corroborated by two jailhouse informants, both of whom knew Anderson
before they became incarcerated. One of the informants said that Anderson
admitted to him that Anderson and Wilson had gone to the Regency Club
3
This case was tried before January 1, 2013 under the old Evidence Code. See Ga.
L. 2011, p. 99, § 101. We note, however, that the provisions of former OCGA § 24-4-8 were
carried forward into the new Evidence Code and now can be found at OCGA § 24-14-8. See
Bradshaw v. State, 296 Ga. 650, 654 (2) (769 SE2d 892) (2015) (“we give the new
accomplice provision the same meaning as the old one”) (citations omitted).
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Apartments, that Wilson got into a “confrontation” with Camp, and that
Anderson drove off without Wilson. The second informant described a
conversation he had with both Anderson and Wilson in which Anderson said
that he and Wilson were going to “beat” the charges “because they ain’t got
nothing on us” and that Sears “is the only one telling.” According to the
informant, when Anderson said this, Wilson “hit his leg, like to shut up,” and
the conversation ended. Finally — and perhaps most importantly — this same
informant described a second conversation in which Wilson complained that
Sears was “telling everything” and that he was “going to try to get some of my
people to go talk to [Sears] and see if he will change his statement.” Wilson then
admitted that he, Anderson, and Sears had been “drinking, popping pills, and
smoking weed” when they decided to make a drug sale at the apartments by
Dougherty High School. But “when they got there, something went wrong with
the drug sale” and Wilson shot Camp.
Based on the totality of the evidence, Sears’s testimony was sufficiently
corroborated under former OCGA § 24-4-8. And in all, the evidence was
sufficient to authorize a rational jury to find beyond a reasonable doubt that
6
Anderson was guilty of the crimes of which he was convicted.4 See Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979);
Powell v. State, 291 Ga. 743, 744 (1) (733 SE2d 294) (2012) (“[a] person who
does not directly commit a crime may be convicted upon proof that a crime was
committed and that person was a party to it”) (citations and punctuation
omitted). See also OCGA § 16-2-20 (b) (defining parties to a crime).
2. Anderson also contends the trial court erred when it failed to instruct
the jury that, in order to convict him of the unlawful possession of a firearm
during the commission of a felony, it had to find beyond a reasonable doubt that
he had a firearm “within arm’s reach.” See OCGA § 16-11-106 (b) (“Any
person who shall have on or within arm’s reach of his or her person a firearm .
. . during the commission of . . . (1) Any crime against or involving the person
of another . . . and which crime is a felony, commits a felony.”). But as
4
Anderson also argues on appeal that there was insufficient evidence to support his
convictions for felony murder predicated on aggravated assault, conspiracy to commit
murder, and aggravated assault. But Anderson was not convicted of any of these crimes. As
described in note 1, supra, the felony murder predicated on aggravated assault was vacated
by operation of law, and the conspiracy and aggravated assault merged with the murder for
which Anderson was convicted and sentenced. As a result, Anderson’s claims about the
sufficiency of the evidence of these crimes are moot. See Mills v. State, 287 Ga. 828, 830 (2)
(700 SE2d 544) (2010); Lupoe v. State, 284 Ga. 576, 577 (1), n. 2 (669 SE2d 133) (2008).
7
Anderson acknowledges, he did not object to the jury charge at trial.
Accordingly, we review this claim only for plain error. See OCGA § 17-8-58
(b).
To show plain error, Anderson must establish not only that the jury
instruction was erroneous, but also that “it was obviously so” and that “it likely
affected the outcome of the proceedings.” State v. Kelly, 290 Ga. 29, 33 (2) (a)
(718 SE2d 232) (2011) (citation omitted). Even assuming that it was obviously
erroneous for the trial court to fail to remind the jury about the “within arm’s
reach” element when it described the offense of unlawful possession of a firearm
during the commission of a felony, Anderson has not shown that such failure
had any effect — much less a likely effect — on the outcome of his trial. The
“within arm’s reach” element was properly included in the unlawful possession
count of the indictment, that indictment was read to the jury, the trial court
charged the jury that the State had to prove every material allegation in the
indictment beyond a reasonable doubt, and the trial court reminded the jury that
it would have the indictment in the jury room “during your deliberations in
order that you may examine the specific allegations against these defendants.”
The trial court charged the jury that possession of a firearm could be actual or
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constructive, and it instructed that actual possession required “direct physical
control” over the firearm and that constructive possession required “both the
power and the intention . . . to exercise dominion and control either directly or
through another person.”
In any event, whether the firearm was “within arm’s reach” was not
disputed at trial, with the State even acknowledging in its closing argument that
unlawful possession required the firearm to be “within . . . reach.” Indeed, there
could be no reasonable dispute that whoever used a gun to shoot Camp actually
had a firearm within arm’s reach at the time of the shooting. The only issue at
trial was whether one of the defendants was the shooter and the others were
parties to his crime. As a result, Anderson has not shown that the trial court’s
failure to remind the jury about the “within arm’s reach” element of unlawful
possession of a firearm had any effect on the outcome of his trial. See Howard
v. State, 288 Ga. 741, 743 (2) (707 SE2d 80) (2011) (no plain error where trial
court failed to instruct on elements of aggravated assault where undisputed
evidence was that perpetrators intentionally fired weapons and defense was
mistaken identity).
Judgment affirmed. All the Justices concur.
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