Agee v. State ( 2021 )

In the Supreme Court of Georgia
Decided: April 19, 2021
S21A0372. AGEE v. THE STATE.
LAGRUA, Justice.
Appellant Derrick Agee was found guilty at a bench trial of
malice murder and other crimes in connection with the shooting
death of Steven Lowe and assault of Monitaaz Simmons. On appeal,
Appellant contends that the evidence was insufficient to support his
convictions because the two witnesses who identified him as the
shooter later recanted their statements. Additionally, Appellant
challenges the validity of his waiver of his right to a jury trial.
Concluding these claims lack merit, we affirm. 1
1 The shooting occurred on December 7, 1997. On August 10, 2001, a
Fulton County grand jury returned a six-count indictment against Appellant,
charging Appellant with malice murder, felony murder, one count of
aggravated assault against Lowe, one count of aggravated assault against
Simmons, and two counts of possession of a firearm during the commission of
a felony. At the conclusion of a bench trial from February 13 to 14, 2006, the
1. Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trial showed that in the early
morning hours of December 7, 1997, Appellant went to Club Escape
in Fulton County with friends to celebrate a birthday and paid for a
VIP room for the celebration. Appellant arrived with friends in
Appellant’s car, a black Oldsmobile Cutlass with a white top, a
decorative racing stripe, and gold rims. The same night, Lowe, a
former security guard at the club, was fired for carrying a gun inside
the club in direct violation of the club’s policy. However, Lowe was
judge found Appellant guilty on all counts. On February 24, 2006, the trial
court sentenced Appellant to serve a life sentence for malice murder; 20
consecutive years on the aggravated assault charge against Simmons; and 10
consecutive years for each firearm possession charge. The remaining charges
merged for sentencing purposes or were vacated by operation of law. The trial
court ordered Appellant to serve the sentence in this case after completion of
Appellant’s life sentence in a separate murder case. See Agee v. State, 279 Ga.
774 (621 SE2d 434) (2005). Appellant timely filed a motion for new trial on
February 27, 2006.
In July 2019, the trial court held a status conference, at which the court
granted Appellant’s request to have 90 days to consider whether to proceed
with the motion for a new trial. At another status conference on October 17,
2019, Appellant, through counsel, requested that the court deny his motion for
new trial to enable him to pursue an appeal. The trial court granted the
request and denied the motion for new trial on October 31, 2019. Appellant
then filed a timely notice of appeal on November 26, 2019, amending it on
December 10, 2019. This Court docketed Appellant’s case for the term
beginning in December 2020, and the case was submitted for a decision on the
briefs.
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allowed to remain in the club after being terminated.
Sometime after Appellant and his group arrived, Reginald
Lindsay, the club’s manager, witnessed a fight break out between
Lowe and a member of Appellant’s group known as “Peanut.” About
a dozen patrons got involved, including some of Appellant’s friends.
Club security escorted Appellant and most of his group out of the
club. Lowe and Peanut were separated inside the club to avoid
further altercations.
Lindsay testified that as he was removing the disorderly
patrons from the club, he heard three gunshots ring out; Lowe had
stepped outside and fired warning shots into the air. Lindsay
demanded that Lowe stop, and Lowe went back inside the club.
Patrons who had left the club following the altercation started
getting back out of their cars and returning to the club. Appellant
confronted Lindsay and demanded a refund for the VIP room.
Lindsay denied the refund and, noting that he was a reserve sheriff’s
deputy, told Appellant to go home. Appellant responded, “No. It
ain’t over. And if you are the police, you better call a thousand more
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because we’re about to light this motherf***** up.” Lindsay then
testified that he saw Appellant go to an older model car with a stripe
across the hood and heard the trunk open. Lindsay then returned
to the club.
Inside the club, Lindsay discovered Lowe and Peanut in the
lobby; Lowe was upset and still had the gun in his hand. Peanut
and Lindsay began trying to persuade Lowe to release the gun.
Meanwhile, another club security guard came inside and reported
that he saw someone with a gun in the parking lot. Lindsay went to
find a phone to call police, at which point multiple shots rang out in
the lobby. Lowe was shot 11 times and pronounced dead at the
scene; one other patron, Monitaaz Simmons, was shot in the leg, but
survived. The medical examiner testified that Lowe’s cause of death
was multiple gunshot wounds to the back, right arm, and both legs.
When police arrived, cars were fleeing the parking lot.
Eleven days after the shooting, investigators interviewed
Tobias Mathews, a member of Appellant’s group on the night of the
shooting, and he identified Appellant as the shooter in a written
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statement to police. According to Mathews’ written statement,
Appellant went to his car to get his gun moments after Lowe fired
warning shots. Appellant then went to the entrance of the club,
opened the door with his leg, and shot “[a]bout 17” times into the
club. Appellant shot until he ran out of bullets and, as he was
shooting, shouted “I told you I was going to kill you, motherf*****.”
Mathews and two other members of the group pulled Appellant
away. Appellant jumped into the passenger seat of his car, and the
car sped away. Based on this information, Appellant was arrested
on December 19, 1997.
About four days after the interview with Mathews, police
received a tip about a black Oldsmobile Cutlass with a white top and
white racing stripe, covered by a tarp and parked behind a house.
Police determined that the house the car was parked behind
belonged to Appellant’s mother.
Terence Johnson, who was working in the parking lot when the
shooting occurred, testified that after the shooting, he saw a two-
toned, older model car pulling away.
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On April 11, 2001, while Detective Brett Zimbrick was
conducting an investigation into a home invasion and shooting that
occurred in Derrick Byrd’s apartment, Byrd, who was a member of
Appellant’s group on the night of the December 7, 1997 shooting,
sought to give Zimbrick information about the club shooting. Byrd
recalled the events of that night and identified Appellant as the
shooter. Byrd stated that after security removed Appellant’s group
from the club, Appellant was upset about how the club security
officers treated him. Then, after Lowe fired the warning shots, Byrd
saw Appellant run to his car and heard, from the direction of
Appellant’s car, a pistol slide being pulled back. Byrd saw Appellant
approach the club with a pistol and fire two rounds at the club door.
Appellant told Byrd to “get away from the door because I am fixin’
to shoot this motherf***** up.” Byrd stated that Appellant emptied
his gun and said, “I am out” before fleeing in his car.
Appellant argues that the evidence was insufficient to support
his convictions because only Mathews and Byrd were eyewitnesses
to the shooting, and at trial, both witnesses recanted their
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statements to police identifying Appellant as the shooter. Mathews
testified that he did not recall providing a statement to police, that
he did not remember some of the events that were in his statement
to police, and that he did not see a shooter that night. Byrd testified
that the statement he provided to police was “full of lies” and that
he did not see the shooter because he had already fled the scene.
Appellant argues that this evidence was insufficient to prove his
guilt beyond a reasonable doubt. We disagree.
When evaluating the sufficiency of evidence, “the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime[s] beyond a reasonable
doubt.” Jackson v. Virginia, 443 U. S. 304, 319 (III) (B) (99 SCt 2781,
61 LE2d 560) (1979) (emphasis omitted). In this analysis, “we view
all evidence in the light most favorable to the trial court’s verdict,
and the defendant no longer enjoys the presumption of innocence.
We do not re-weigh testimony, determine witness credibility, or
address assertions of conflicting evidence.” Wimberly v. State, 302
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Ga. 321, 323 (1) (806 SE2d 599) (2017) (citation and punctuation
omitted).
Here, the record shows that Appellant admitted that he was at
the club on the night of the shooting, that he was upset with security
for forcing him out of the club, and that Lowe was one of the people
who angered him. Additionally, after Appellant argued with
Lindsay about a refund, Lindsay heard Appellant threaten to “light
this motherf***** up.” Johnson, the parking attendant employee,
witnessed a two-toned, older model vehicle matching the description
of Appellant’s car screeching away after the shooting. A car
matching that description was later found at Appellant’s mother’s
house, hidden under a tarp.
Moreover, despite their later recantations, Mathews and Byrd
both identified Appellant as the shooter in written statements to
police. Mathews told police that Appellant had gone to his car,
retrieved a gun, and returned to the club where he shot multiple
times through the doorway of the club. Byrd told a similar story
identifying Appellant as the shooter, adding that Appellant was
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angry and seeking retribution.
Appellant argues that, without the written statements of Byrd
and Mathews, the evidence merely places Appellant inside the club
on the night of the shooting. However, the jury was authorized to
credit these witnesses’ statements to police over their recantations
at trial. See Bullard v. State, 307 Ga. 482, 484-485 (1) (837 SE2d
348) (2019); see also Cartwright v. Caldwell, 305 Ga. 371, 379 (2) (a)
(825 SE2d 168) (2019); Robbins v. State, 300 Ga. 387, 391 (793 SE2d
62) (2016) (“A prior inconsistent statement of a witness who takes
the stand and is subject to cross-examination is admissible as
substantive evidence . . .”). “The fact that the [factfinder] resolved
the conflicts in the evidence or credibility for the witnesses adversely
to [Appellant] does not render the evidence insufficient.” Bullard,
307 Ga. at 485 (1) (quoting Jackson, 443 U. S. at 319). We therefore
conclude that the written statements, together with the other
evidence presented at trial, was more than sufficient to authorize a
rational finder of fact to determine Appellant guilty beyond a
reasonable doubt of the crimes for which he was convicted. See
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Jackson, 443 U. S. at 319.
2. Appellant contends that he did not knowingly, intelligently,
and voluntarily waive his right to a jury trial. This argument is
meritless.
The constitutional right to a jury trial may be waived only if
the State proves beyond a reasonable doubt that a defendant did so
knowingly, voluntarily, and intelligently. See Balbosa v. State, 275
Ga. 574, 575 (1) (571 SE2d 368) (2002) (jury trial waiver by defense
counsel in the presence of the defendant was not enough to
constitute the defendant’s own knowing, intelligent, and voluntary
jury trial waiver). The State can do so by either (1) showing on the
record that the defendant was cognizant of the right being waived;
or (2) supplementing the record through the use of extrinsic evidence
which affirmatively shows that the waiver was knowingly,
voluntarily, and intelligently made. See Johnson v. Smith, 280 Ga.
235, 236 (626 SE2d 470) (2006). We review a trial court’s acceptance
of a waiver of a constitutional right for clear error. See Lyman v.
State, 301 Ga. 312, 317 (2) (800 SE2d 333) (2017); Seitman v. State,
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320 Ga. App. 646, 646 (740 SE2d 368) (2013).
Here, the record indicates that Appellant made a knowing,
voluntary, and intelligent waiver of his right to a jury trial. Before
the bench trial, the following colloquy occurred on the record:
COURT: . . . Well let me—Mr. Agee, I understand that
you and—I’m making an assumption, but I want to
confirm it, that you and [defense counsel] discussed this
matter of you electing to have a bench trial and the pros
and cons of doing that. Did you not?
APPELLANT: Yes, sir.
COURT: Okay. And the law requires that the defendant
personally waive the right to a jury trial; because
obviously, a jury trial is a constitutional right that
everyone has guaranteed to them. Do you understand
you’ve got a right to a jury trial if you chose to have one?
APPELLANT: Yes, sir.
COURT: Okay. And with a bench trial, the court will
make the—will be the finder of fact as well as the person
that presides over the law, as opposed to in a jury trial,
the jury would be the fact-finder and the court would
provide the law for the jury. Do you understand the
difference in that?
APPELLANT: Yes, sir.
COURT: All right. And you, in fact, do you want to waive
your right to a jury trial and elect to have a bench trial?
APPELLANT: Yes, sir.
Appellant argues that this colloquy fails to establish that his
waiver was voluntary or that he understood the ramifications of
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making such a waiver. We disagree.
When a defendant seeks to waive his or her right to a jury trial,
“[a] trial court should ask the defendant sufficient questions on the
record so that the court can ensure the defendant’s waiver is
knowing, voluntary, and intelligent.” Watson v. State, 274 Ga. 689,
691 (2) (558 SE2d 704) (2002). Here, the trial court asked Appellant
on the record whether he was electing to waive his right to a jury
trial and whether he understood the advantages and disadvantages
of that choice. The court also highlighted the fact that a jury trial
was the Appellant’s constitutional right, and the court made clear
that the judge, not a jury, would be the finder of fact in his case.
Finally, the court confirmed a second time with Appellant that he
wanted to waive his right to a jury trial and elect to have a bench
trial instead. In each instance, Appellant responded that he
understood and was opting to forgo a jury trial. Based on the record,
we conclude that Appellant personally, knowingly, intelligently, and
voluntarily waived his right to a jury trial. See Watson v. State, 274
Ga. 689, 690-691 (2) (558 SE2d 704) (2002) (waiver was knowing,
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intelligent, and voluntary where defendant was asked personally on
the record whether he wanted to proceed with a bench trial, and
defendant orally affirmed the waiver).
Appellant also contends that additional measures should be
taken in order to ensure that a defendant’s waiver is knowing,
intelligent, and voluntary, such as specific inquiries into the
defendant’s education and mental status, or allowing the defendant
the opportunity to watch another bench trial before making a
decision, citing Johnson v. State, 157 Ga. App. 155, 155-156 (2) (276
SE2d 667) (1981) (noting that the trial court inquired into education
and mental status and gave the defendant additional time to
consider the advantages and disadvantages of a bench trial), and
Safford v. State, 240 Ga. App. 80, 82-83 (2) (522 SE2d 565) (1999)
(noting that the trial court gave the defendant the opportunity to
watch a bench trial before proceeding with his own).
However, in both of those cases, the specific inquiries and the
opportunity to observe a bench trial were afforded after the trial
court determined that the defendant knowingly, intelligently, and
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voluntarily waived a jury trial, and were additional measures that
the trial court elected to provide. Such measures are not
categorically required for a trial court to establish that a defendant’s
waiver is knowing, intelligent, and voluntary. See Brown v. State,
277 Ga. 573, 574 (2) (592 SE2d 666) (2004) (defendant personally,
knowingly, voluntarily, and intelligently waived a jury trial after he
was informed of the various aspects of a jury trial and the
consequences of relinquishing that right, and then “only after
receiving [defendant’s] oral assurance that he wished to waive trial
by jury.”). Therefore, we decline to extend the requirements for a
valid jury trial waiver as asserted by Appellant, the trial court did
not clearly err in finding such a waiver, and this enumeration of
error is without merit.
Judgment affirmed. All the Justices concur.
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