Waller v. State

W
In the Supreme Court of Georgia



                                    Decided: May 17, 2021


                 S21A0276. WALLER v. THE STATE.


      LAGRUA, Justice.

      Appellant Derain Waller was convicted of felony murder and

other crimes in connection with the shooting death of Demonde

Dicks, Jr. On appeal, Appellant contends that the evidence was

legally insufficient to support his convictions generally and his

conviction for armed robbery specifically, and that the trial court

erred in sentencing him on the armed robbery and felony murder

counts. 1   For the reasons that follow, we affirm Appellant’s


      1  The crimes occurred on June 15, 2016. In February 2017, a Muscogee
County grand jury indicted Appellant for malice murder, felony murder (based
on armed robbery), armed robbery, possession of a firearm during the
commission of a felony, possession of a firearm by a convicted felon, and
violation of the Georgia Street Gang Terrorism and Prevention Act. Prior to
trial, the State moved to nolle pros the possession of a firearm by a convicted
felon charge, and that charge was formally nolle prossed by the trial court on
November 13, 2017. In October 2017, Appellant was tried jointly with co-
defendants Jacquawn Clark and Akeveius Powell. The jury found Appellant
guilty of felony murder, armed robbery, and possession of a firearm during the
                                      1
convictions for felony murder and possession of a firearm during the

commission of a felony, but vacate his conviction for armed robbery

because that conviction should have merged into the felony murder

count for sentencing purposes.

      1.    Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed the following. Appellant was

arrested on June 17, 2016, after being implicated by his cousin and

co-defendant, Jacquawn Clark, in the June 15, 2016 murder of

Dicks. According to Clark, on the morning of June 15, Dicks had

traveled from Atlanta to Columbus aboard a Groome Transportation

van. Surveillance video showed that Dicks was carrying a black




commission of a felony and not guilty of malice murder and violation of the
Georgia Street Gang Terrorism and Prevention Act. The trial court sentenced
Appellant to serve life in prison without parole for the felony murder count, a
concurrent life term for the armed robbery count, and a five-year consecutive
term for the firearm possession count. Appellant did not initially file a motion
for new trial. However, on December 21, 2017, Appellant filed a motion for
out-of-time appeal through trial counsel. On May 18, 2020, Appellant filed a
motion for new trial through appellate counsel. On May 21, 2020, the trial
court granted Appellant’s motion for out-of-time appeal and held an
evidentiary hearing on the motion for new trial. On August 17, 2020, the trial
court denied Appellant’s motion for new trial. Appellant filed a timely notice
of appeal on August 25, 2020, and his appeal was docketed to this Court’s term
beginning in December 2020 and submitted for a decision on the briefs.
                                       2
backpack when he arrived in Columbus. Upon his arrival, Dicks

called his friend Clark, also known as “Sosa,” to arrange for Clark to

pick him up at the Groome Transportation Center.

     At approximately 12:45 p.m., Clark picked up Dicks at Groome,

driving a black Monte Carlo. Dicks told Clark he was in Columbus

for a few hours “to make some moves,” which Clark understood to

mean to buy or sell cocaine. Clark and Dicks went to Family Dollar

to purchase plastic wrap.     After they entered the store, Dicks

received a phone call. Dicks handed Clark some money to purchase

the plastic wrap and went outside into the parking lot, still on the

telephone. After Clark made the purchase and exited the store, he

saw Dicks in the parking lot, leaning into the passenger side window

of a white Camaro. Clark approached Dicks and handed him the

plastic wrap, and Dicks then gave it to someone inside the vehicle.

Dicks also put some money into his pocket.

     Clark and Dicks then drove to a nearby residence where Dicks

purchased marijuana. Around this time, Clark made two phone

calls to a contact named “Spoonk” – a moniker Appellant used to

                                  3
identify himself on Facebook.

     After Appellant received the phone calls from Clark, Appellant

exchanged several text messages with Akeveius Powell, Appellant’s

other co-defendant at trial.    At trial, Detective Sandra Hickey

testified about the content of this text exchange, which took place

between 1:43 p.m. and 2:04 p.m.       A summary of her testimony

regarding their text exchange is as follows:

     At 1:43 p.m., Appellant initiated a text conversation with

Powell, telling Powell that a man with Clark had “40 bands,” and

“he a murder homie.” Appellant then asked Powell for the “green

light.” Powell asked who the man was, and Appellant responded

that he did not know the man, but “he wit[h] sosa” (a/k/a Clark).

Powell texted in response, “Greenlight shawty.” Appellant asked

Powell to come and get him, but Powell responded that he did not

have the “wheels yet,” followed by, “Get the murder “ni**a.”

Appellant responded that he was fixing to “do” the man and then

have Clark bring Appellant to Powell’s house, again stating that the

man had “[a]bout 50k.” Powell responded, “Okilla.”

                                  4
     Appellant and Clark also exchanged text messages during this

timeframe, and Detective Hickey testified at trial about the content

of this exchange, as well, which is summarized as follows: Appellant

texted Clark, stating, “Let me do him.” Clark responded that he

would let Appellant “do” it, but Clark had to set it up first because

he and Dicks were supposed to be “Rxllin.” Clark then texted

Appellant that they would have to kill Dicks, to which Appellant

responded, “Ik.”

     According to Clark, Clark and Dicks arrived at the Double

Churches Park between 2:30 p.m. and 3:00 p.m. and went to the

basketball court in the back of the park to smoke marijuana.

Witnesses testified that they also saw a third man with Clark and

Dicks when they arrived at the park. Right after the men finished

smoking, Dicks was shot in the back of the head, and Clark

immediately left the park in the Monte Carlo. As he was leaving,

Clark called Powell and drove directly to the Walden Pond

Apartments, where Powell was staying.        Clark then called his

mother, who advised him that he needed to go to the police to tell

                                 5
them what happened.       Clark’s mother picked him up at the

apartment complex, and they returned to the park to talk to the

police.

     Harvey Carter was at the park that afternoon. While Carter

was standing in the parking lot, he saw some people near the

basketball court.    Carter then heard what sounded like “a

firecracker, maybe a car backfire, maybe gunfire,” and saw two men

enter the parking lot, get into a black car, and drive away. Carter

noticed that the men were no longer at the basketball court and saw

something on the ground that resembled a bag or a jacket. Upon

realizing it was a body, he alerted a park staff member, who then

called 911.

     Hunter Bradberry was in the parking lot at the park that

afternoon when a car with three men inside pulled up next to him.

Bradberry saw the men get out and walk to the basketball court.

Later, he heard what sounded like a gunshot.

     At 3:01 p.m., the Columbus Police Department received a call

about the shooting at the park. When police officers arrived, they

                                6
found Dicks, deceased, lying on the ground near the basketball court

with a fatal gunshot wound to the back of his head.

     Between 3:30 p.m. and 4:00 p.m., Clark returned to the scene

and spoke to police officers, telling them he knew the identity of the

shooter. Clark agreed to go to police headquarters to be formally

interviewed. In the interview, Clark told police officers that he went

to the park with Dicks to smoke marijuana, and when they finished

and turned to leave, Dicks was “being shot, falling to the ground.”

Clark stated that “he knew who committed this crime and that [the]

individual was [Clark’s] cousin.”      Clark stated that after the

shooting, he ran off and drove to Walden Pond Apartments,

immediately calling his mother to tell her what happened. Clark

did not tell police officers about any communications he had with

Appellant or Powell prior to the shooting or mention the black

backpack that was in Dicks’s possession when Clark picked him up

at Groome.

     Following the interview with Clark, police officers obtained his

cell phone. Police officers then executed search warrants to obtain

                                  7
records connected to Clark’s cell phone, and later, to the cell phones

used by Appellant and Powell on June 15.             After additional

investigation, police officers asked Clark to return to police

headquarters for a second interview on June 17.

      During this interview, police officers asked Clark if Dicks had

anything in his possession when Clark picked him up on June 15,

and Clark mentioned Dicks was carrying a small backpack. Clark

also stated that he saw the backpack at the Walden Pond

Apartments after Dicks was shot. Police officers asked Clark if he

had any interest in robbing Dicks, and Clark denied any such

interest. At the conclusion of this interview, Clark was arrested.

Police officers then secured arrest warrants for Appellant and

Powell, and Appellant was arrested later that day.

     During Appellant’s incarceration following his arrest, he

shared a jail cell with Anthony Faust for approximately two months.

During this time, Appellant told Faust that he and his cousin

“robbed a dude and killed the dude for $40,000.” Appellant told

Faust the crime happened at Double Churches Park by the

                                  8
basketball court, saying “they drove back from the Groome to the

park,” “smoked a blunt,” and then “killed the dude.” Appellant

indicated he had fired the shot and that the $40,000 was inside the

backpack the man he killed had with him. Appellant said he gave

his cousin $15,000, and that Clark was supposed to go to Atlanta,

but instead, Clark went and got his mother and returned to the

crime scene. Appellant said Clark was the one who set everything

up, and they communicated about it by cell phone. Appellant said

he should have killed Clark afterwards. Faust then reported what

Appellant told him to the deputies at the jail who contacted the

police.

     2. Appellant contends that the evidence presented at trial was

insufficient to support his convictions and, in particular, was

insufficient to support his conviction for armed robbery.       We

disagree.

     In evaluating the sufficiency of the evidence of a defendant’s

guilt, “the proper standard of review is whether a rational trier of

fact could have found the defendant guilty beyond a reasonable

                                 9
doubt pursuant to Jackson v. Virginia[, 

443 U.S. 307

(99 SCt 2781,

61 LE2d 560) (1979)].” Battle v. State, 

301 Ga. 694

, 701 (5) (804

SE2d 46) (2017). Thus, we do not reweigh the evidence or resolve

conflicts in trial testimony; instead, “we view the evidence in a light

most favorable to the . . . verdicts, with deference to the jury’s

assessment of the weight and credibility of the evidence.”

Id.

(a) Addressing first

the armed robbery charge, which was the

predicate offense for the felony murder conviction, Appellant asserts

that the State’s theory at trial was that Dicks had $40,000 in his

backpack at the time he was killed. Appellant argues that while

there was sufficient evidence to show that Dicks had a backpack

when he arrived in Columbus, the evidence was insufficient to show

that Dicks had $40,000 when he was shot or that the backpack was

in his immediate presence. In addition, Appellant claims there was

no evidence to show where the backpack was when Dicks went to

Double Churches Park, what ultimately happened to the backpack

or any money inside, or that Appellant ever had the money.

Appellant also argues that the only evidence of what happened when

                                  10
Dicks was shot came from the statement Clark made to police

officers, and Clark did not tell police officers anything about the

money.

     On this basis, Appellant contends that the State failed to prove

beyond a reasonable doubt that the money and the backpack were

taken from the immediate presence of Dicks or that force was used

either before or after Dicks was shot. Appellant further contends

that because the evidence was insufficient to prove armed robbery,

the felony murder charge based on the armed robbery also fails. We

see no merit to these contentions.

     “A person commits the offense of armed robbery when, with

intent to commit theft, he or she takes property of another from the

person or the immediate presence of another by use of an offensive

weapon[.]” OCGA § 16-8-41 (a). The burden is on the State to “prove

that the defendant’s use of the weapon occurred prior to or

contemporaneously with the taking.” Johnson v. State, 

307 Ga. 44

,

49 (2) (b) (834 SE2d 83) (2019). However, the use of the weapon may

still be considered contemporaneous where the killing occurs first

                                 11
and the taking of the property occurs second.     See Hester v. State,

282 Ga. 239

, 240 (2) (647 SE2d 60) (2007) (holding that “[i]t is well-

settled that a defendant commits a robbery if he kills the victim first

and then takes the victim’s property”). In addition, the jury can rely

on circumstantial evidence to infer that the defendant used force in

taking the property of the victim. See 

Johnson, 307 Ga. at 49

.

     Here, the evidence showed that when Dicks arrived in

Columbus, he had a black backpack in his possession, but when his

body was located at Double Churches Park, he was no longer in

possession of the backpack.       The evidence also showed that

Appellant and Clark believed that Dicks’s backpack contained about

$40,000 in cash, and Appellant exchanged numerous text messages

with Powell and Clark, intimating that Appellant wanted to rob

Dicks. These messages further indicated that the men knew they

would probably have to kill Dicks in order to take the money,

demonstrating that the robbery was the motive for the murder.

Witnesses at the scene also said they saw at least three men at the

basketball court, and after hearing a gunshot, witnesses saw only

                                  12
two men returning to a black vehicle. Clark admitted to police that

he drove to Walden Pond Apartments in a black Monte Carlo after

the shooting and saw Dicks’s backpack at the apartments.

Following Appellant’s arrest, Appellant admitted to his cellmate,

Faust, that he and his cousin “robbed a dude and killed the dude for

$40,000.” Appellant also admitted that he was the shooter. Based

upon this evidence, the jury was authorized to make the reasonable

inference    that    Appellant    used     force   against     Dicks

contemporaneously with the taking of his backpack.

     Additionally, the evidence in this case was sufficient to prove

that at a minimum, Appellant was a participant in the armed

robbery of Dicks, and “[i]t is certain that a participant in a crime

may be convicted for the crime although he or she is not the one who

directly committed the crime.” 

Battle, 301 Ga. at 701

(citing OCGA

§ 16-2-21). Thus, we determine that the evidence was sufficient to

enable the jury to find Appellant guilty of armed robbery, as well as

felony murder based upon the armed robbery, beyond a reasonable

doubt, and his argument to the contrary fails. See Francis v. State,

                                 13

266 Ga. 69

, 71 (1) (463 SE2d 859) (1995) (citing 

Jackson, 443 U.S.

at 319

).

     (b) Appellant also contends that the evidence was insufficient

to support his convictions generally because (1) none of the

witnesses at the park identified Appellant as the person who shot

Dicks or as the second man they saw at the scene; (2) no physical

evidence existed connecting Appellant to the crimes; and (3) there

was insufficient evidence to show that Appellant was the person

known as “Spoonk.” We disagree.

     The evidence presented at trial showed that the cell phone

number utilized by Appellant on June 15 appeared in Clark’s cell

phone under the contact name “Spoonk.” Appellant also referred to

himself as “Spoonk” on social media, as well as in mail and emails

received at the jail following his arrest. In addition, Appellant made

a full confession to Faust during his pre-trial incarceration,

identifying himself as the one who shot Dicks.

     Based upon the above, we conclude that the evidence was

sufficient for a jury to find Appellant guilty beyond a reasonable

                                 14
doubt of the crimes of which he was convicted. See 

Johnson, 307 Ga.

at 48

. Thus, this enumeration of error fails.

     3. Appellant contends that the trial court erred in sentencing

him on both the armed robbery and felony murder counts. We agree.

     Here, the jury convicted Appellant of armed robbery and felony

murder predicated on the same armed robbery. “[B]ecause armed

robbery was the predicate felony to support the felony murder

conviction, the trial court should have merged the armed robbery

count into the felony murder count for sentencing purposes rather

than sentencing [Appellant] on that count.” Jones v. State, 

305 Ga.

744

, 744 n.1 (827 SE2d 887) (2019). See also Culpepper v. State, 

289

Ga. 736

, 737 (2) (715 SE2d 155) (2011) (“When the only murder

conviction is for felony murder and a defendant is convicted of both

felony murder and the predicate felony of the felony murder charge,

the conviction for the predicate felony merges into the felony murder

conviction.”). As such, the armed robbery count merged into the

felony murder count, and the armed robbery conviction must be

vacated. See 

Jones, 305 Ga. at 744

. See also OCGA § 16-1-7 (a) (1)

                                 15
(providing that a defendant may not be convicted of two crimes

where one is “included in the other”); Norris v. State, 

302 Ga. 802

,

805 (809 SE2d 752) (2018) (holding that one crime is “included in

the other” so that the convictions should merge for sentencing when

one of the crimes is “established by proof of the same or less than all

of the facts”).

     Judgment affirmed in part and vacated in part. All the Justices
concur.




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