Twitty v. State , 298 Ga. 204 ( 2015 )

In the Supreme Court of Georgia
Decided: November 2, 2015
S15A0906. TWITTY v. THE STATE.
BLACKWELL, Justice.
Demetric Twitty was tried by a Richmond County jury and convicted of
murder and other crimes, all in connection with the fatal shooting of Ian Mosley.
Twitty appeals, contending only that the State failed to prove that venue
properly lay in Richmond County. Upon our review of the record and briefs, we
agree that the State failed to prove venue, and for that reason, the judgment of
the trial court is reversed.1
1
Mosley was killed on or about July 24, 2006. Twitty and co-defendants Kelly
Roberts and Edward Reeves were indicted on October 31, 2006, and they were reindicted on
November 13, 2007. Each defendant was charged with malice murder, felony murder, and
the unlawful possession of a firearm during the commission of a crime. In addition, Reeves
was charged with the unlawful possession of a firearm by a convicted felon, and Twitty was
charged with the unlawful use of a firearm by a convicted felon during the commission of
a crime. The case against Twitty was severed from the prosecution of Roberts and Reeves,
and Twitty was tried alone, beginning on December 3, 2007. The jury returned its verdict
four days later, finding him guilty on all counts. Twitty was sentenced to imprisonment for
life for malice murder, a consecutive term of imprisonment for five years for unlawful
possession of a firearm during the commission of a crime, and a consecutive term of
imprisonment for fifteen years for unlawful use of a firearm by a convicted felon during the
commission of a crime. The verdict as to felony murder was vacated by operation of law.
Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). Twitty timely filed a
1. Viewed in the light most favorable to the verdict, the evidence shows
that Mosley drove to Gaffney, South Carolina, to visit friends on July 24, 2006.
Late that afternoon, Twitty and Kelly Roberts abducted Mosley, tied him up, and
put him into the trunk of his own car. Twitty and Roberts then drove the car to
Milledgeville, Georgia, where they met up with Edward Reeves. Twitty,
Roberts, and Reeves then drove to a park known as the “Lock and Dam.” In or
near the park, they backed the car down a boat ramp, where Twitty pulled
Mosley from the trunk, fired three shots (one to Mosley’s head), and dumped
Mosley into the water. The next morning, a local fisherman found Mosley’s
body in the water at the Lock and Dam.
Aside from venue — which we address in Division 2 below — Twitty
does not dispute that the evidence is sufficient to sustain his convictions.
motion for new trial on January 4, 2008, and he amended it on April 21, 2014. The trial court
denied his motion on April 25, 2014, and Twitty timely filed a notice of appeal on May 5,
2014. The case was docketed in this Court for the April 2015 term and submitted for decision
on the briefs.
Because we reverse the convictions for insufficient proof of venue, we have no
occasion to consider whether the trial court erred when it separately sentenced Twitty for the
unlawful possession of a firearm during the commission of a crime and the unlawful use of
a firearm by a convicted felon during the commission of a crime. See Favors v. State, 296
Ga. 842, 847 (5) (770 SE2d 855) (2015) (merger error properly can be addressed by appellate
court sua sponte).
2
Nevertheless, we have independently reviewed the record with an eye toward
the legal sufficiency of the evidence. We conclude that the evidence adduced at
trial was legally sufficient to authorize a rational trier of fact to find beyond a
reasonable doubt that Twitty was guilty of the crimes of which he was
convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781,
61 LE2d 560) (1979).
2. Twitty contends that the State failed to prove that venue properly lay in
Richmond County. A criminal case must be tried “in the county where the crime
was committed,” Ga. Const. of 1983, Art. VI, Sec. II, Par. VI, and our law
generally considers a criminal homicide to have been committed “in the county
in which the cause of death was inflicted.” OCGA § 17-2-2 (c). “If it cannot be
determined in which county the cause of death was inflicted, it shall be
considered that it was inflicted in the county in which the death occurred.” Id.
“If a dead body is discovered in this state and it cannot be readily determined in
what county the cause of death was inflicted, it shall be considered that the
cause of death was inflicted in the county in which the dead body was
discovered.” Id. As for crimes other than homicide, “[i]f in any case it cannot be
determined in what county a crime was committed, it shall be considered to have
3
been committed in any county in which the evidence shows beyond a reasonable
doubt that it might have been committed.” OCGA § 17-2-2 (h). Venue is a
jurisdictional fact that must be proved by the State beyond a reasonable doubt
whenever it is in issue, and under our precedents, a plea of not guilty is
sufficient to put venue in issue. See Sales v. State, 296 Ga. 538, 540 (2) (a) (769
SE2d 374) (2015); Jones v. State, 272 Ga. 900, 901-903 (2) (537 SE2d 80)
(2000).
In this case, the cause of death — the shooting of Mosley — was inflicted
on a boat ramp in or near the Lock and Dam park. The evidence shows that
Twitty made several statements, accompanied investigators to a particular boat
ramp in the Lock and Dam park, and admitted that Mosley was shot on that boat
ramp. Reeves testified as well that Mosley was shot on a boat ramp in the
vicinity of the Lock and Dam. Mosley’s body was found in the water at the Lock
and Dam, a location consistent with his having been shot on a boat ramp in or
near the park. And although no forensic evidence of the shooting was found at
the boat ramp to which Twitty accompanied the investigators, there was no
evidence that the cause of death was inflicted anywhere other than the boat
ramp. The State’s theory of the case pointed to the boat ramp as the scene of the
4
shooting.2 And there was no evidence that the county in which the boat ramp
was located could not be ascertained. Proper venue for the murder lay, therefore,
in the county in which the boat ramp is situated. See OCGA § 17-2-2 (c). Venue
for the other crimes of which Twitty was convicted necessarily lay in the same
county. See OCGA § 17-2-2 (a). The State failed, however, to adduce any
evidence identifying that county.
The State points to evidence that Mosley’s body was found in Richmond
County. The county in which a body is found, however, establishes venue for
a homicide only when “it cannot be readily determined in what county the cause
of death was inflicted.” OCGA § 17-2-2 (c). The State also points to evidence
that Richmond County law enforcement officers undertook to investigate the
killing of Mosley, and citing Chapman v. State, 275 Ga. 314, 317-318 (4) (565
SE2d 442) (2002), the State argues that this evidence is some proof that the
crime was committed in Richmond County. Even if evidence of the county in
2
Indeed, in closing arguments, after defense counsel speculated that perhaps Mosley
might have been killed in South Carolina, the prosecuting attorney responded that “it’s clear”
that Mosley was killed in Georgia. In support of this response, the prosecuting attorney
pointed to Twitty’s own admissions (putting the infliction of the cause of death on the boat
ramp), Reeves’s testimony (putting the infliction of the cause of death on the boat ramp), and
the location in which the body was found (consistent with the cause of death being inflicted
on a boat ramp).
5
which an investigating officer is employed might be sufficient in some cases
without more to establish venue, but see In re B. R., 289 Ga. App. 6, 9 (2) (656
SE2d 172) (2007) (“evidence of an investigating officer’s county of
employment is insufficient standing alone to prove venue”), the evidence in this
case that Richmond County officers were involved in the investigation is no
evidence of the location in which the cause of death was inflicted, which is, of
course, the relevant location for venue purposes. Here, the officers were not
called to respond to that location, but instead to the separate location at which
the body was found, which indisputably was in Richmond County. That
Richmond County law enforcement officers would be involved in an
investigation of the discovery of a body in Richmond County is unsurprising,
and their involvement proves nothing about the location in which the cause of
death was inflicted, especially when evidence shows clearly that the cause of
death was inflicted somewhere other than the place in which the body was
found. See Thompson v. Brown, 288 Ga. 855, 856-857 (708 SE2d 270) (2011);
King v. State, 271 Ga. App. 384, 387 (1) (609 SE2d 725) (2005). Finally, the
State notes some uncertainty about the place in which death occurred, pointing
to some evidence that Mosley still was alive when he was dropped into the
6
water. But even if the place in which death occurred is uncertain, the place in
which the cause of death was inflicted is not. See Tankersley v. State, 261 Ga.
318, 323 (8) (404 SE2d 564) (1991).
After reviewing the record in the light most favorable to the verdict, we
must conclude that the State failed to prove venue beyond a reasonable doubt.
See Thompson, 288 Ga. at 857; Jones, 272 Ga. at 903 (3). The boat ramp to
which all of the evidence pointed as the scene of the crime was known to
investigators, but no one at trial asked those investigators about the county in
which the boat ramp was located. See Grant v. State, 326 Ga. App. 121, 124 (2)
(756 SE2d 255) (2014) (officers could have established where the offense was
committed, but they were not asked). Accordingly, we must reverse the
judgment below. As we have explained before, however, our reversal of a
judgment of conviction because the State failed to adequately prove venue is no
bar to retrial. Lynn, 275 Ga. at 290 (4). And as we did in Thompson, we “urge
prosecutors to make sure that they do not overlook this essential part of their
cases.”3 288 Ga. at 858 (citations omitted).
3
For all we know, the entire Lock and Dam park, and every boat ramp in its vicinity,
may be located in Richmond County. And perhaps the jurors — residents of Richmond
County — would have known as much from their everyday lives and their common
7
Judgment reversed. All the Justices concur.
knowledge of the community that they share.
Nevertheless, that fact is not established by the trial record, and defendants
may not be convicted of crimes based on extra-judicial knowledge rather than
evidence of such essential facts admitted at trial. We have noted before that,
in light of the ease with which venue generally can be proved, it is difficult to
understand why the appellate courts are repeatedly faced [with this] issue.
Nevertheless, like the Court of Appeals, we continue to see cases like this one
in which venue becomes a serious issue on appeal, apparently unnecessarily.
One way to encourage prosecutors to make sure they have proven venue and
to alert the juries to their role in determining venue is to instruct juries that
they must find venue beyond a reasonable doubt. Accordingly, this Court
strongly urges trial courts to begin giving an appropriate charge on venue
tailored to the facts of the case.
Thompson, 288 Ga. at 857-858 (citations and punctuation omitted).
8