Babbage v. State ( 2015 )

296 Ga. 364FINAL COPY
S14A1286. BABBAGE v. THE STATE.
S14A1287. HALL v. THE STATE.
HUNSTEIN, Justice.
Appellants Mason Babbage and Samuel Hall were jointly tried and
convicted of murder, armed robbery, and related crimes in connection with the
October 2011 death of Breyon Alexander. Both men were sentenced to life in
prison without the possibility of parole plus consecutive terms of years, and each
now appeals his convictions and sentences. Finding no error in regard to either
appellant, we affirm.1
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Appellants, together with co-defendant Phillip Kennebrew, were indicted by
a DeKalb County grand jury on counts of malice murder, felony murder, aggravated
assault, armed robbery, false imprisonment, and possession of a knife during the
commission of a felony. Hall was additionally charged with possession of a firearm
during the commission of a felony and firearm possession by a convicted felon. The
three men were jointly tried in August 2012 and found guilty on all counts. Babbage
was sentenced to life without parole for malice murder plus various consecutive and
concurrent terms of years for armed robbery, false imprisonment, and weapon
possession, for a total sentence of life plus 25 consecutive years; the remaining counts
merged or were vacated as a matter of law. Hall was sentenced to life without parole
for malice murder plus various consecutive and concurrent terms of years for the
counts that were not merged or vacated, for a total sentence of life plus 45
consecutive years. Both appellants filed timely motions for new trial, which they
each subsequently amended, and, following a joint hearing in October 2013, the trial
court denied both motions on December 30, 2013. Each appellant filed a timely
Viewed in the light most favorable to the jury’s verdicts, the evidence
adduced at trial established as follows. Around midday on October 18, 2011,
Marvin Evans heard a loud noise from the back of his second floor DeKalb
County apartment. From his balcony, Evans observed a white Chevrolet Malibu
with its back side facing the apartment building. Evans saw two light-skinned
black men, one beside the car and the other, whose hair was worn in dreadlocks,
running toward the car. Proceeding downstairs to investigate, Evans passed a
bald, light-skinned black man coming up the stairs. At trial, Evans identified
Hall as the man he passed on the stairs.
In the downstairs apartment, Evans discovered the victim hogtied and
bleeding, with several teeth knocked out of his mouth. The apartment had been
ransacked. Evans called 911. Though conscious when Evans discovered him,
the victim died from his injuries soon thereafter. His injuries included both
blunt and sharp force injuries, consistent with having been stabbed and beaten
with the butt of a gun. A knife was found in the apartment’s patio area.
There were no signs of forced entry into the apartment, from which
notice of appeal in January 2014, and both appeals were docketed to the September
2014 term of this Court. Babbage’s appeal was orally argued on September 9, 2014,
and Hall’s appeal was submitted for decision on the briefs.
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numerous items of electronic equipment, firearms, and a large sum of cash had
been taken. Among the stolen items were a 50-inch flat screen television, a 42-
inch television, a 12-gauge shotgun, two laptop computers, two Playstation
gaming systems, an Xbox gaming system, a .40 caliber Smith and Wesson
handgun, two .380 caliber handguns, and three other guns. The victim’s
roommate testified that the victim sold drugs from their apartment and for this
reason was always careful about whom he allowed inside.
As of the time of the crimes, Babbage had known the victim for six to
seven years. Babbage had stayed in the victim’s apartment the week prior to the
crimes, had been in the apartment many times, and knew that there were guns,
money, and marijuana there. Babbage had sold a 50-inch TV to the victim a few
weeks prior, and there was testimony that Babbage had recently demanded the
victim sell it back, a demand the victim had refused. A search of Babbage’s
home uncovered a pair of black pants, identified as belonging to Babbage,
bearing blood stains matched to the victim and DNA matched to Babbage.
Babbage’s wife owned a white Chevrolet Malibu, and there was evidence that
Babbage had driven that vehicle on the morning of the crimes. A search of the
Malibu uncovered fingerprints on the exterior of the front passenger side door
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belonging to Hall, a friend of Babbage.
Hall’s girlfriend, Erin Tew, testified that, on the day before the crimes, she
had overheard a telephone conversation on speaker phone between Hall and
Babbage, in which they discussed “hitting a lick” on a man who had molested
Babbage’s niece and who had guns and drugs. The State established that, at the
time of the murder, the victim was under indictment for child molestation.
A search of the home Hall shared with his girlfriend uncovered a 12-gauge
shotgun, a .380 caliber handgun, 12-gauge shotgun shells, and .38 caliber live
rounds. In the back yard of the home, investigators also discovered a makeshift
barbeque grill containing ashes and charred clothing remnants. The son and
daughter of Hall’s girlfriend, who also lived in the home, testified that when
they returned home from school on the day of the crimes, Hall, Babbage, and an
unknown third man had “cool” electronic equipment at the house, which
Babbage loaded into his car the following day. They also testified that on the
same day Babbage and Hall had cut off their hair and all three men had used the
backyard grill to burn clothing.
Tew testified that, on the day of the crimes, she received two text
messages from Hall, the first stating, “I think we f**ked up,” and the second
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stating, “I think we killed somebody.” Immediately thereafter, she received
electronic photographs showing a sink full of dreadlocks and Hall, who, though
previously having worn dreadlocks and full facial hair, was now bald and clean-
shaven. On the evening of the crimes, Tew testified, Hall told her that “it wasn’t
even worth it” and that “he didn’t even get anything.”
A cigarette butt recovered from the victim’s apartment was determined to
bear the DNA of co-defendant Phillip Kennebrew. Kennebrew’s girlfriend
testified that, on the morning of the crimes, she had driven Kennebrew to meet
Babbage, who was driving a white Chevrolet. Kennebrew’s girlfriend also
testified that when she saw him later that day he was wearing different clothes
than he had been wearing in the morning. During the investigation, a search
uncovered live .40 caliber Smith and Wesson rounds and 12-gauge shotgun
rounds, as well as a knife, in backpacks belonging to Kennebrew.
Cell phone records revealed that, on the day of the crimes, 15 separate text
or voice communications took place between Babbage’s cell phone and Hall’s
cell phone. Six of these communications, which occurred during a 36-minute
period around the time of the crimes, were transmitted via the cell tower
servicing the area of the victim’s apartment. The phone records also showed
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seven communications between Babbage’s cell phone and Kennebrew’s cell
phone from that morning.
Case No. S14A1286
1. Though Babbage has not enumerated the general grounds, we
nonetheless find that the evidence as summarized above was sufficient to enable
a rational trier of fact to conclude beyond a reasonable doubt that Babbage was
guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S.
307 (99 SCt 2781, 61 LE2d 560) (1979). The victim’s blood was found on
Babbage’s pants, and Babbage’s car was seen at the crime scene at the time of
the crimes. Babbage had established motives for the crimes, was familiar with
the victim’s apartment and the valuables kept there, and was likely to have been
able to enter the apartment with the victim’s consent. On the afternoon of the
crimes, Babbage was seen in possession of items identical to those stolen from
the victim’s apartment. He was also observed on that same day cutting his hair
and burning clothing, strongly indicative of an attempt to elude recognition.
There was evidence that Babbage was in the company of, and in frequent cell
phone contact with, both Hall and Kennebrew on the day of the crimes, both of
whom were linked to the crimes independent of the evidence of their association
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with Babbage. While there is little evidence regarding precisely “who did what”
in the victim’s apartment, there is ample evidence to implicate Babbage either
as a principal or as a party to the crimes. See OCGA § 16-2-20 (persons
“concerned in the commission of a crime,” by way of intentionally aiding and
abetting or intentionally advising, encouraging, or counseling another to commit
such crime, may be charged with and convicted of commission of the crime); see
also Hassel v. State, 294 Ga. 834 (1) (755 SE2d 134) (2014) (evidence regarding
defendant’s presence at crime scene, motive, and conduct before and after crime
was sufficient to establish guilt as an accomplice); Rush v. State, 294 Ga. 388,
389 (1) (754 SE2d 63) (2014) (“‘[p]resence, companionship, and conduct before
and after an offense is committed are circumstances from which participation in
the criminal act may be inferred’”).
2. Babbage contends that his trial counsel rendered ineffective assistance
in two respects. To establish ineffective assistance of counsel, a defendant must
show that his trial counsel’s performance was professionally deficient and that
but for such deficient performance there is a reasonable probability that the
result of the trial would have been different. Strickland v. Washington, 466 U.
S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 3557
(3) (689 SE2d 280) (2010). To prove deficient performance, one must show
that his attorney “performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing professional
norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). Courts
reviewing ineffectiveness claims must apply a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional performance. Id.Thus, decisions regarding trial tactics and strategy may form the basis for an
ineffectiveness claim only if they were so patently unreasonable that no
competent attorney would have followed such a course. Id. If the defendant
fails to satisfy either the “deficient performance” or the “prejudice” prong of the
Strickland test, this Court is not required to examine the other. See Green v.
State, 291 Ga. 579 (2) (731 SE2d 359) (2012).
(a) Babbage first claims his counsel was ineffective for failing to object
to the trial court’s jury instruction on parties to a crime, insofar as the indictment
did not specifically charge Babbage as a party. However, it is well-settled that
the indictment need not specifically charge a defendant as a party to the crime
in order to permit a jury instruction on accomplice liability and authorize a
conviction based thereon. Jennings v. State, 288 Ga. 120 (2) (702 SE2d 151)
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(2010). As counsel cannot be deemed ineffective for failing to make a meritless
objection, see Williams v. State, 289 Ga. 672 (2) (715 SE2d 76) (2011), this
enumeration is without merit.
(b) Babbage also contends his trial counsel was ineffective for failing to
object to the imposition of a life sentence without the possibility of parole given
the absence of any jury determination that such punishment was appropriate.
Babbage claims that Georgia law permitting trial judges to impose such a
sentence without a jury’s input, OCGA § 16-5-1 (e) (1); Williams v. State, 291
Ga. 19 (1) (727 SE2d 95) (2012), is at odds with United States Supreme Court
precedent delineating the jury’s constitutionally mandated role in the imposition
of enhanced punishment. Apprendi v. New Jersey, 530 U. S. 466 (IV) (120 SCt
2348, 147 LE2d 435) (2000) (holding that any fact, other than that of a prior
conviction, that increases the penalty for a crime beyond the statutory maximum
must be submitted to a jury and proven beyond a reasonable doubt). Babbage
asserts that trial counsel performed deficiently in failing to make this argument
at sentencing.
We disagree. As we noted in Williams, supra, the Georgia General
Assembly in 2009 amended our murder statute, OCGA § 16-5-1, to add life
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imprisonment without the possibility of parole as an authorized punishment for
murder without regard to whether the State seeks the death penalty. Williams,
291 Ga. at 20.2 Thus, life without parole is now within the range of statutorily
authorized punishments in all but a discrete, narrowly defined subset of murder
cases. OCGA § 16-5-1 (e) (1), (2).3 Because life without parole falls within the
statutory range, Apprendi simply does not apply to this sentencing scheme. See
Apprendi, 530 U. S. at 490 (Sixth and Fourteenth Amendments require jury
determination as to facts that “increase[ ] the penalty for a crime beyond the
prescribed statutory maximum” or “increase the prescribed range of penalties
to which a criminal defendant is exposed”). Consequently, trial counsel’s
failure to make the novel — and, ultimately, unsuccessful — argument that
Babbage now propounds cannot provide the basis for an ineffectiveness claim.
See Rickman v. State, 277 Ga. 277 (2) (587 SE2d 596) (2003) (noting that trial
counsel are under no general duty to anticipate changes in the law and thus only
2
As originally enacted, the life without parole provision appeared at subsection
(d) of OCGA § 16-5-1, see Ga. L. 2009, p. 223, § 1; however, that Code section has
since been amended such that the life without parole provision now appears at
subsection (e). See Ga. L. 2014, p. 445, § 1-1.
3
Specifically, life without parole is not available for felony murder premised
on second degree child cruelty, as defined in OCGA § 16-5-1 (d).
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rarely could a successful ineffectiveness claim be premised on the failure to
make an objection that would have lacked merit under existing law).
Case No. S14A1287
3. Appellant Hall, unlike Babbage, does challenge the sufficiency of the
evidence in support of his convictions. However, we find that the evidence was
more than sufficient to sustain Hall’s convictions. Jackson, 443 U. S. at 316.
Hall was identified by witness Marvin Evans as the man he saw coming upstairs
from the victim’s apartment just before Evans’ discovery of the crimes; his
fingerprints were found on the car used in the crimes; a search of the home
where Hall lived uncovered various firearms matching the descriptions of those
stolen from the victim’s apartment; Hall was seen on the afternoon of the crimes
with electronic equipment just like that which was stolen; Hall cut off his hair,
shaved his beard, and burned his clothing on the afternoon of the crimes; Hall
was an associate of Babbage, who was implicated in the crimes by evidence
independent of his association with Hall; Hall’s cell phone was shown to have
transmitted several communications with Babbage’s cell phone through a cell
tower in close proximity to the victim’s apartment around the time of the crimes;
and Hall’s own statements to his girlfriend, both via text message and in person,
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corroborated his participation in the murder and robbery. Though Hall asserts
that all the evidence implicating him was circumstantial, see former OCGA §
24-4-6,4 the sheer weight of this evidence effectively defeats the plausibility of
any hypothesis other than that of Hall’s guilt. See Owens v. State, 286 Ga. 821(1) (693 SE2d 490) (2010).
4. Hall next contends that the trial court erred in allowing Erin Tew to
testify that Hall was previously incarcerated. During cross-examination, Hall’s
counsel pressed Tew on how long she had known Hall, to which Tew responded
that she had been dating Hall for two-and-a-half years and had known him
slightly longer than that, remarking that “he’s only been out of prison for three
years.” Given that no objection was made at the time Tew gave this testimony,
Hall has failed to preserve this issue for appellate review. See, e.g., Jones v.
State, 292 Ga. 593 (6) (740 SE2d 147) (2013).
5. Hall also contends his trial counsel rendered ineffective assistance of
counsel in several respects.
(a) First, Hall makes the general claim that trial counsel failed to
4
For trials occurring on and after January 1, 2013, this provision is now
codified at OCGA § 24-14-6.
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adequately investigate the case, consult with Hall, or prepare for trial. However,
the trial court was authorized to credit counsel’s testimony at the new trial
hearing that he met with Hall several times prior to and during trial, shared with
Hall the State’s discovery materials and explained to Hall his proposed trial
strategy, and, in coordination with his private investigator, interviewed
witnesses, visited the crime scene, and otherwise investigated the case.
Moreover, insofar as Hall has failed to proffer any specific evidence that trial
counsel would have uncovered or alternative strategies counsel would have
pursued had he investigated more thoroughly, Hall cannot establish prejudice
in this regard.
(b) Hall next contends that trial counsel rendered ineffective assistance by
failing to object during opening statements when the prosecutor referred to the
victim as a “nice kid.” Given that the jury was instructed that opening
statements are not evidence and that this isolated comment was contradicted by
actual evidence that the victim was a drug dealer and accused child molester, we
find no deficient performance in counsel’s failure to object. Moreover, given
the strength of the evidence against Hall, we find no reasonable probability that
the result of Hall’s trial would have been different had counsel responded to the
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remark differently.
(c) Hall also contends that trial counsel performed in an objectively
unreasonable manner in deliberately characterizing Hall as a drug dealer. Trial
counsel testified at the new trial hearing that his strategy was to present to the
jury a credible alternative explanation for what Hall was doing at the time of the
murder and also to preempt or blunt the effect of the evidence of drugs and drug
paraphernalia found in the search of Hall’s home. Because the phone records
showed that Hall was in the vicinity of the crime scene around the time of the
crimes, counsel chose to argue that Hall was simply at his home — which was
in close proximity to the crime scene — doing what he normally did. Though
this strategy was ultimately unsuccessful, we do not find that it was patently
unreasonable given the nature of the State’s evidence against Hall and the
apparent absence of any alternative strategies.
(d) Hall’s final contention is that counsel rendered ineffective assistance
in failing to object or request a mistrial when Tew made reference to Hall’s prior
incarceration. See Division 4, supra. However, it is well established that a
witness’ passing reference to a defendant’s past criminal record — particularly
when it is not responsive to the question posed — does not improperly place his
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character in issue. See Lanier v. State, 288 Ga. 109, 110 (2) (702 SE2d 141)
(2010) (“a nonresponsive answer that impacts negatively on a defendant’s
character does not improperly place (his) character in issue” (punctuation
omitted)); Isaac v. State, 269 Ga. 875, 877-878 (5) (505 SE2d 480) (1998)
(“‘passing reference’” to defendant’s criminal history did not create reversible
error). Counsel’s decision not to draw attention to this remark by making an
objection neither constitutes deficient performance nor, given the weight of the
evidence against Hall, resulted in any prejudice.
Judgments affirmed. All the Justices concur.
Decided January 20, 2015.
Murder. DeKalb Superior Court. Before Judge Flake.
Ghanayem & Rayasham, Musa M. Ghanayem, Mark J. Issa, Jonathon J.
Majeske, for appellant (case no. A14A1286).
Anthony S. Carter, for appellant (case no. A14A1287).
Robert D. James, Jr., District Attorney, Gary D. Bergman, Charles C.
Olson, Charles A. Spahos, Joseph F. Burford, Samuel S. Olens, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K, Smith,
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Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney
General, for appellee.
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