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Morris v. State

Court: Supreme Court of Georgia
Date filed: 2023-08-21
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  NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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  official text of the opinion.



      In the Supreme Court of Georgia



                                                 Decided: August 21, 2023


                       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
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




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
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
every reasonable hypothesis other than his guilt. 2 We affirm for the

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




      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).
“We thus limit our review to the sufficiency of the evidence presented at trial
regarding the malice murder count.” Id.
                                       3
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]

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

                                  4
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

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

                                  5
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

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,

                                 6
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

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,”


     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
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

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”



      4 Small provided a written statement consistent with his verbal account

of events.
                                     8
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.”

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


     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
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

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

                                   10
types of rifling.”

     2. Appellant contends that the 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 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

                                  11
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

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)

                                 12
(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

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

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

                                 13
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

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).

                                14
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).

     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).

                                  15
“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.

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

                                 16
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

reject as unreasonable Appellant’s only alternative hypothesis —

that Grier fired the fatal bullet. Accordingly, this claim fails.

     Judgment affirmed. All the Justices concur.




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