304 Ga. 799
FINAL COPY
S18A1583. GRAY v. THE STATE.
MELTON, Chief Justice.
Following a jury trial, Bobby Eugene Gray appeals his convictions for
murder and related crimes, contending that the evidence was insufficient to
support the verdict, the verdict was contrary to and against the weight of the
evidence, and that the trial court and defense counsel made certain evidentiary
errors.1 For the reasons set forth below, we affirm.
1
On March 5, 2003, Gray and James Stewart Odom were indicted for
murder, felony murder, two counts of aggravated assault, armed robbery, and
possession of a weapon during the commission of a crime. Odom was found
guilty of these crimes in a separate trial on September 12, 2003. Following a
March 8-12, 2004 jury trial, Gray was also convicted of all counts charged
against him. On March 19, 2004, Gray received a life sentence for malice
murder, ten years for armed robbery to run consecutively to the life sentence,
and five years for possession of a weapon during the commission of a crime to
run consecutively with the life sentence and the armed robbery sentence. The
trial court merged the first aggravated assault count into the malice murder
count, and the second aggravated assault count into the armed robbery count for
sentencing purposes, and although the trial court also purported to “merge” the
felony murder count into the malice murder count, the felony murder count was
actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369 (4)
(
434 SE2d 479) (1993). On October 15, 2013, Gray filed a “Petition for
1. In the light most favorable to the verdict, the record shows that, on
November 9, 2001, James Stewart Odom picked Gray up from a friend’s house,
and the two men drove around drinking and smoking crack cocaine. Over the
course of the night, Odom and Gray made several drug purchases, which Odom
paid for because Gray did not have any money at the time. At one point, Odom
and Gray went to a body shop where Gray worked so that Gray could get money
for another drug transaction. Gray spoke with someone inside the shop and then
Redress,” and the trial court granted an out-of-time appeal on January 26, 2014,
directing the appeal to be filed within 30 days. No timely notice of appeal or
motion for new trial was filed. On May 22, 2014, the trial court granted Gray an
extension until July 31, 2014, even though it was not authorized to do so. See
OCGA § 5-6-39. On July 31, 2014, Gray filed a motion for new trial, which was
amended on August 3, 2015. The trial court denied Gray’s motion for new trial
on August 3, 2015, and Gray subsequently filed an untimely notice of appeal
with this Court on March 22, 2016. On May 9, 2016, this Court dismissed the
appeal for lack of jurisdiction, stating that, “an untimely motion for new trial
does not toll the time for filing the notice of appeal.” Case No. S16A1270
(citing Fulton v. State, 277 Ga. 126 (
587 SE2d 20) (2003)). The Court’s order
also provided that
[Gray] may file another request for an out-of-time appeal in the trial
court. If the trial court grants an out-of-time appeal, [Gray] will
have 30 days from the entry of the trial court’s order within which
to file a notice of appeal.
On June 14, 2018, Gray filed a request for an out-of-time appeal with the trial
court, and the trial court granted the appeal on the same day. Gray then filed this
timely notice of appeal on July 6, 2018. See Rowland v. State, 264 Ga. 872, 875
(2) (
452 SE2d 756) (1995). The appeal was docketed in this Court for the
August 2018 term and submitted for decision on the briefs.
2
told Odom to call the drug dealer and set up another purchase. However, when
Odom and Gray later met the drug dealer, Gray admitted that he would not
actually have money until the next day, so Odom paid for the drugs again. Still
looking for more money to fund drug transactions, Odom suggested that they
ask an acquaintance, Buford Evans, for cash. Around 6:30 a.m., Gray and Odom
drove to Evans’s house, and Evans invited them in and agreed to lend them
twenty dollars. Odom testified that Evans had additional money, which Evans
put back in his pocket after handing Odom and Gray the twenty dollars. When
Gray and Odom got in the car to leave Evans’s home, Gray stated that he forgot
his cigarettes and ran inside to get them. After not hearing from Gray for a few
minutes, Odom went into the house and found Evans with his back to the wall
and his hands up, and Gray with a knife raised toward Evans. Although Odom
testified that he did not see Gray stab Evans, he did testify that he saw cuts
above Evans’s right eye and blood coming from his head. Odom further testified
that he was “freaking out” and trying to get Gray to put down the knife. At one
point, Odom cut his own hand while grabbing Gray’s arm in an attempt to get
him to put down the knife. Odom then sat Evans down on the floor and tried to
call 911, but Gray pulled out a gun and pointed the gun at Odom and Evans
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while yelling at Odom to leave. At this point, Odom attempted to help Evans
back up on the couch, but Gray grabbed Odom by his collar to get up and leave,
making Odom fall on top of Evans. Instead of leaving, Odom propped up Evans
on the couch and went to the kitchen to find something to help clean up Evans’s
blood. When Odom returned with a rag, Gray told him to wipe up any of his
bloody fingerprints, like he had just done himself.2 Odom later saw Gray taking
Evans’s checkbook and wallet from the coffee table in the living room. The two
men then left the house with Gray pointing a gun at Odom, and left Evans in the
living room still bleeding. Odom testified that, although he did not see any stab
wounds on Evans, he saw a puddle of blood on the floor in the foyer, and a
puddle of blood near Evans’s body when Gray pushed Odom on top of Evans.
While driving away from Evans’s house, Gray disposed of the gun, the knife,
and Evans’s belongings in a dumpster. Gray and Odom then used the money
they stole from Evans to purchase more drugs. After smoking the drugs, Gray
and Odom drove to the body shop they visited earlier and disposed of their
clothes in a barrel behind the shop.
2
Gray’s fingerprint was later found on a bloodstained trophy in Evans’s
house.
4
Evidence collected and observed by law enforcement supported this
version of events. On November 13, 2001, Officer Paul Garland was dispatched
to Evans’s house, where he found Evans’s dead body, covered in blood and
slumped over on the couch. Evans had lacerations to his head and stab wounds
on his chest. The GBI medical examiner confirmed Evans’s cause of death was
from one of two stab wounds to the chest, inflicted by a cutting instrument like
a knife going at least “two to three inches” into Evans’s heart.3 He also testified
that Evans suffered blunt force injuries and abrasions on the top part of his head
consistent with being hit or pushed against something about seven to nine
times.4 In addition, evidence of the following was found in the house: Evans’s
pants on the living room floor with the pockets turned inside out; pooled blood
and blood spatter throughout the living room; dried blood and athletic shoe
footprints on the kitchen floor and blood on the sink; and two trophies with
bloodstains on the hardwood floor near the front door. Gray’s fingerprint was
3
The GBI examiner also testified that this type of wound could take
several minutes to kill someone after the victim is stabbed.
4
The GBI examiner also testified that the marble base of a trophy, if used
to inflict blunt force trauma, would cause the same type of abrasions found on
Evans’s head.
5
found on one of the trophies along with Evans’s blood.
On November 14, 2001, Gray was placed under arrest at the Clayton
County Police Department. Gray signed a waiver of rights form two separate
times and engaged in two interviews with Detective Michael Harris that took
place less than an hour apart. During the second interview, Gray confessed that
he was with Odom on the night of the murder, that he and Odom had discussed
wanting money from Evans at some point during the night, and that he went into
Evans’s house and picked up the trophy while inside.
Gray contends that there was insufficient evidence to convict him of the
crimes for which he was found guilty. We disagree. The evidence presented at
trial was sufficient to enable the jury to find Gray guilty beyond a reasonable
doubt of the crimes for which he was convicted.5 Jackson v. Virginia, 443 U. S.
307 (
99 SCt 2781, 61 LE2d 560) (1979). See also OCGA § 16-2-21 (party to a
crime).
5
We note that, because the trial court vacated the felony murder count and
merged both counts of aggravated assault, those counts do not amount to actual
“convictions.” Slack v. State, 288 Ga. 659, 661 (2) (
706 SE2d 447) (2011) (jury
verdicts on individual counts that are merged into other counts for sentencing
purposes are not equivalent to convictions).
6
2. Gray contends that the evidence was sufficiently close to warrant this
Court to exercise discretion pursuant to the general grounds set forth in OCGA
§§ 5-5-20 and 5-5-21 and grant Gray a new trial. We disagree.
As this Court has previously explained,
[a] motion for new trial based on OCGA § 5-5-20, i.e., that the
verdict is contrary to the evidence, addresses itself only to the
discretion of the trial judge. Whether to grant a new trial based on
OCGA § 5-5-21, i.e., that the verdict is strongly against the
evidence, is one that is solely in the discretion of the trial court, and
the appellate courts do not have the same discretion to order new
trials.
(Citation and punctuation omitted.) Dent v. State, 303 Ga. 110, 114 (2) (
810
SE2d 527) (2018). Consequently, when this Court reviews a trial court’s denial
of a new trial based upon the general grounds, “this Court must review the case
under the standard set forth in Jackson v.
Virginia, supra.” (Citation and
punctuation omitted.)
Id. As this Court determined in Division 1, supra, that
standard has been met.
3. Gray contends that the trial court erred in failing to suppress his in-
custody statements to law enforcement on November 14, 2001. Specifically,
Gray argues that, because Detective James Walker violated his rights by having
a conversation with him after he told Detective Harris that he did not wish to
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speak any longer, his ensuing statements should be suppressed. We disagree.
The United States Supreme Court has held that when an individual in
custody “indicates in any manner, at any time prior to or during questioning, that
he wishes to remain silent, the interrogation must cease,” and “any statement
taken after the person invokes his privilege cannot be other than the product of
compulsion.” Miranda v. Arizona, 384 U. S. 436, 473-474 (III) (
86 SCt 1602,
16 LE2d 694) (1966). However, “[i]f, after invoking his Fifth Amendment
rights, a defendant is found to have initiated contact with authorities and then
knowingly and intelligently waived his rights, his ensuing statements will be
considered properly obtained.” Mack v. State,
296 Ga. 239, 244 (2) (
765 SE2d
896) (2014), citing Oregon v. Bradshaw,
462 U. S. 1039, 1045 (
103 SCt 2830,
77 LE2d 405) (1983) (plurality opinion).
Testimony at the Jackson-Denno hearing showed that, when Gray was
brought into the station, Detective Walker sat with him until Detective Harris
was available. At that point, Detective Harris began the interview with Gray
without Detective Walker in the room.6 Detective Harris first asked Gray about
6
It is not disputed that Gray was not in custody when he was first brought
into the station.
8
the night of the murder, and Gray denied knowing Evans, hanging out with
Odom, or being at Evans’s house. Detective Harris then read Gray his Miranda
warnings, and Gray stated that he understood his rights and was still willing to
talk.7 Detective Harris asked Gray the same questions again, and Gray gave the
same responses. However, when Detective Harris told Gray that his fingerprint
was found on a trophy collected from Evans’s house, Gray eventually claimed
that he was with Odom on the night of the murder, but that he dozed off in
Odom’s car and woke up to Odom handing him the trophy. At this point,
Detective Harris placed Gray under arrest, and Gray indicated that he no longer
wished to talk. Detective Harris subsequently left the interview room, and sent
Detective Walker8 in to watch over Gray.9 Detective Walker spoke with Gray
about non-case-related topics, including where Gray was currently living and
about his dog. During their conversation, without any prompting from Detective
7
It is not disputed that Gray validly waived his Miranda rights during the
first interview with Detective Harris.
8
Detective Walker testified at the Jackson-Denno hearing that he went
back into the interview room because Gray had requested to speak with him.
Gray and Detective Walker had known each other for over twenty years. He also
testified that he went back into the room because Detective Harris sent him to
watch over or “babysit” Gray.
9
Detective Harris noticed blood on Gray’s clothes during their initial
conversation, and sent the ID technician and photographer into the room along
with Detective Walker.
9
Walker, Gray stated that he was being “framed” for murder. Detective Walker
then asked Gray if that is why he was there, to which Gray responded, “yes.”
Then, after Gray’s third comment about being framed for murder, Gray also
volunteered to Detective Walker that Detective Harris had previously indicated
that his fingerprint was found on a trophy in Evans’s home. At this point,
Detective Walker said that if Detective Harris told Gray that information, that
it was not a lie, and he suggested that if Gray knew any information that might
help him, he should speak with Detective Harris. Gray then requested to speak
with Detective Harris again. Detective Harris re-entered the room and read Gray
his Miranda rights for the second time. After waiving his rights again, Gray
admitted that he was with Odom on the night of the murder, that he and Odom
discussed wanting money from Evans at some point during the night, and that
he went into Evans’s house and picked up the trophy while inside. Gray
contends that these statements were not admissible because he had invoked his
right to silence, and he had not voluntarily initiated renewed questioning.
“On appeal, the reviewing court must accept the trial court’s findings of
disputed fact regarding ‘initiation’ unless clearly erroneous.” Mack, supra,296
Ga. at 248 (2) (b). However, we must also independently review “whether any
actual renewal of contact by the suspect, in the context of the entire interaction
10
between law enforcement authorities and the accused, constitutes a legally
effective ‘initiation.’” Id. at 248-249 (2) (b).
Here, Gray’s right to remain silent was not violated. First, it is not in
dispute that Detective Harris “scrupulously honored [Gray’s] . . . invocation of
his right to remain silent by immediately stopping his interview and physically
exiting the interview room.” Griffin v. State, 280 Ga. 683, 686 (2) (
631 SE2d
671) (2006). See also Michigan v. Mosley,
423 U. S. 96, 104 (
96 SCt 321, 46
LE2d 313) (1975) (confessions are unconstitutionally coerced from a defendant
when the accused’s right to cut off questioning was not scrupulously honored
after he or she decided to remain silent). See generally
Miranda, supra,384 U.
S. at 457-458 (I). Detective Walker’s subsequent initial conversation with Gray
about non-case-related matters did not constitute “express questioning by law
enforcement officers or its functional equivalent,” and thus was not an improper
interrogation. (Citation and punctuation omitted.) State v. Brown,
287 Ga. 473,
476 (2) (
697 SE2d 192) (2010). See also Taylor v. State,
303 Ga. 225, 231 (5)
(
811 SE2d 286) (2018) (there was no interrogation where the officer told a
defendant, who had invoked her right to remain silent, that if she ate something
she could smoke a cigarette outside, and she subsequently made spontaneous
confessions about the case while outside with the officer, because the officer’s
11
actions were “not calculated to elicit an incriminating response”).
Further, to the extent that Detective Walker’s later responses to Gray’s
comments about being framed and his fingerprint being on the trophy could be
characterized as an interrogation, Gray initiated the renewed contact by
“speak[ing] up first” and thereby “reflect[ing] a desire to discuss the
investigation at hand.” Mack, supra,296 Ga. at 246 (2) (b). See also
Brown,
supra,287 Ga. at 477 (2) (defendant repeatedly initiated conversation,
unprompted by an interrogation posture, when he continually interrupted
detectives to discuss case-related topics, including his concern for the victim).
See also
Bradshaw, supra,462 U. S. at 1045 (plurality opinion) (distinguishing
between inquiries “relating to routine incidents of the custodial relationship”
that did not meet the standard for initiation, and those “represent[ing] a desire
on the part of an accused to open up a more generalized discussion relating
directly or indirectly to the investigation”). Here, Gray made three unsolicited
comments to Detective Walker about being framed. And Detective Walker
responded by asking Gray if that is why he was there only after Gray brought
up the case first. Walton v. State,
267 Ga. 713, 718 (4) (
482 SE2d 330) (1997)
(“[A]n accused’s response to an officer’s answer to a question posed by the
accused is not the product of custodial interrogation.”), disapproved on other
12
grounds by Toomer v. State, 292 Ga. 49 (
734 SE2d 333) (2012). After Gray
requested to speak with Detective Harris again, Detective Harris re-read Gray
his Miranda rights, and Gray re-signed the Miranda form, validly waiving his
rights. Thus, Gray’s subsequent admissions to Detective Harris were properly
obtained and admissible in trial. There was no error.
Judgment affirmed. All the Justices concur.
13
Decided December 10, 2018.
Murder. Clayton Superior Court. Before Judge Carter.
Darrell B. Reynolds, Sr., for appellant.
Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Todd E.
Naugle, Assistant District Attorneys; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General,
for appellee.
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