LUMPKIN v. THE STATE (Two Cases)

FINAL COPY

               S20A0734. LUMPKIN v. THE STATE.
                S20A0879. GREEN v. THE STATE.


     BETHEL, Justice.

     A Gwinnett County jury found Anthony Lumpkin and Eddie

Green guilty of murder and other offenses in connection with the

shooting death of Nicholas Jackson II. Both appellants argue that

the trial court erred by denying their motions to suppress evidence

seized during a traffic stop. In addition, Lumpkin challenges the

sufficiency of the evidence presented against him on the armed

robbery count and the felony murder count predicated on armed

robbery, and Green argues that the trial court erred by not

admitting certain evidence pursuant to OCGA § 24-8-804. Because

each of these enumerations of error fail, we affirm in part, but we

also vacate in part to correct a sentencing error with respect to

Lumpkin.1


     1 The crimes occurred on February 2, 2012. On April 25, 2012, a Gwinnett
County grand jury indicted Lumpkin, Green, Darrez Chandler, Michael Davis,
Jason Dozier, Timothy Johnson, and Reco West on 16 charges. Pertinent to
this appeal, all seven defendants were charged with malice murder (Count 1),
felony murder predicated on armed robbery (Count 2), felony murder
predicated on aggravated assault (Count 3), felony murder predicated on
burglary (Count 4), armed robbery (Count 5), aggravated assault (Count 6),
and burglary (Count 7). Lumpkin was also indicted for possession of a firearm
during the commission of a felony (Count 10) and possession of a firearm by a
convicted felon (Count 14). Green was indicted for possession of a firearm by a
convicted felon (Count 13). The remainder of the indictment did not pertain to
Lumpkin or Green.
      Chandler, Davis, Dozier, Johnson, and West were not tried with
Lumpkin and Green. Chandler and Johnson each pled guilty to armed robbery,
aggravated assault, and battery and testified for the State at Lumpkin and
Green’s trial. Their cases are not part of this appeal. Davis, Dozier, and West
were each tried individually, found guilty of various offenses arising from this
incident, and sentenced. This Court affirmed their respective convictions and
sentences on appeal. See Dozier v. State, 

 (

) (2019);
Davis v. State, 

 (

) (2019); West v. State, 

(

) (2019).
      At a joint jury trial held from November 12 to 25, 2013, Lumpkin was
found guilty of Counts 1 through 7 and 10. The trial court entered an order of
nolle prosequi as to Count 14. Green was found not guilty of Count 1 but guilty
of Counts 2 through 7. The trial court entered an order of nolle prosequi as to
Count 13.
      Lumpkin and Green were sentenced on December 6, 2013. Lumpkin was
sentenced to a term of life imprisonment without the possibility of parole for
malice murder, a consecutive term of life imprisonment for armed robbery, a
consecutive term of imprisonment of twenty years for aggravated assault, a
consecutive term of imprisonment of twenty years for burglary, and a
consecutive term of imprisonment of five years for possession of a firearm
during the commission of a felony. As to Lumpkin, the trial court purported to
merge the three felony murder counts into the malice murder count, but those
counts were actually vacated by operation of law. See Malcolm v. State, 

 (4) (

) (1993). Green was sentenced to a term of
life imprisonment for felony murder predicated on armed robbery. The
remaining felony murder counts were vacated by operation of law, and the trial
court purported to merge the remaining counts. The State has not challenged
Green’s sentences, and we decline to address them. See Dixon v. State, 

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

evidence presented at trial showed the following. In September

2011, Kevell Ross contacted his stepbrother, Timothy Johnson,

requesting his assistance in robbing a house in Norcross that

belonged to a drug dealer who supplied cocaine to Ross. The man

who owned the house, Nicholas Jackson, Sr., lived there with his

wife and four children, who included Nicholas Jackson II, the victim.

Later that fall, Ross met with Johnson, Darrez Chandler, and Green

to discuss the robbery. The group initially planned to rob the house

in December 2011. They recruited other individuals to assist but



691, 696-698 (4) (

) (2017).
       On December 9, 2013, Lumpkin filed a motion for new trial, which he
amended on March 27, 2015. The trial court held a hearing on the motion, as
amended, on March 31, 2015, and denied the motion on April 4, 2018. Lumpkin
filed a notice of appeal on May 4, 2018.
       On December 10, 2013, Green filed a motion for new trial, which he later
amended six times through new counsel. The trial court held hearings on the
motion, as amended, on January 19, 2016, and February 2, 2018. On December
14, 2017, the trial court denied Green’s motion for new trial on the grounds
alleged in his original motion and the first five amended motions. On April 3,
2018, the trial court denied Green’s motion for new trial on the grounds alleged
in his sixth amended motion. Green filed a notice of appeal on May 2, 2018.
       After the records were transmitted, these cases were docketed to this
Court’s April 2020 term, were submitted for decisions on the briefs, and have
been consolidated for opinion.

                                       3
decided to abandon the robbery when they saw a car with a woman

and child inside drive up to the house.2

     On February 2, 2012, Chandler, Johnson, and Green decided

to attempt the robbery again, and Lumpkin, Jason Dozier, Michael

Davis, and Reco West were recruited to assist. The group planned

that Chandler and Johnson would remain in their vehicles while

Lumpkin, Dozier, Davis, and West would initially enter the home.

Green was to join them inside later to assist in the search for money.

Lumpkin, Dozier, Davis, and West were to be armed; Green was not.

     Before the robbery, Lumpkin instructed Green to pick up Davis

and West. Green relayed the instructions to Johnson, and, at




     2   The individuals were identified at trial only as “Josh,” “Meko,”
“Country,” and “Slab.” They were not involved in the February 2, 2012 robbery
of the home. During the initial attempt, Johnson drove Green to the house in
his truck, while Chandler drove the other men in his car. According to the
initial plan, Johnson and Chandler would remain in their respective vehicles.
The occupants of Chandler’s vehicle would initially enter the home armed and
“do the hard work,” and Green would later join in efforts to search the home
for money. Cell phone tower data presented to the jury indicated that on
December 14, 2011, cell phones belonging to Green, Chandler, and Johnson
each traveled from Atlanta to Norcross at approximately the same time, where
they utilized cell phone towers near the Jacksons’ home. Cell phone tower data
from February 2, 2012, showed that the three cell phones utilized the same
towers near the Jacksons’ house at the time of the incident.
                                      4
Green’s request, Johnson drove Green to pick up Davis and West in

a silver van that Green had provided. Johnson then drove Green,

Davis, and West in the van to the house in Norcross. Meanwhile,

Chandler separately drove Lumpkin and Dozier in his car, stopping

at a store at Lumpkin’s direction to purchase duct tape on the way

“just in case” someone was home during the robbery.

     As Johnson’s group got close to the house, Green called

Chandler’s group, informing them that he wanted to show the house

to the men in his van, after which Johnson’s group circled the house

in the van, then parked in a nearby parking lot to wait for Chandler’s

group. While there, Green called Chandler’s group several times to

check on their status. After Chandler’s group arrived, Lumpkin and

Dozier got into the silver van, which then proceeded to the house.

Chandler drove to and parked in a different parking lot nearby.

     The van arrived at the house, and Johnson noticed a vehicle

parked in the driveway. He expressed concern to the others in the

van about going ahead with the robbery with the potential for

women or children to be in the house. Lumpkin replied that “we

                                  5
didn’t come up here for nothing” and that Johnson should not “start

that s***.” Green then waved at Johnson, indicating that he should

pull the van into the driveway. Lumpkin then said that he was

“going to smash this b**** in” and that the others should follow him

into the house.

     Lumpkin, Dozier, Davis, and West approached the entrance to

the home’s basement on foot. Green and Johnson waited in the van,

and Green instructed Johnson to pull away from the house and circle

the block. Johnson and Green heard gunfire just as they arrived

back at the house, and they decided to remain in the van. Lumpkin,

Davis, Dozier, and West, who were still armed, exited the house and

got into the van, which Johnson then drove away.

     Lumpkin had called Chandler as the four men walked up to the

house, and Chandler stayed on the line with him while the group

went inside. Over the phone, Chandler could hear a door being

kicked in, followed by commotion and gunshots. Chandler then

heard Lumpkin say, “This man dead.” The phone hung up, but

Chandler called Lumpkin back. Lumpkin told him, “the man dead.”

                                 6
     While in the van, Lumpkin told Johnson and Green that

someone had been shot. Lumpkin told them, “There was a young

n***** in there, man. He was bucking. . . . Man, I kept telling him

to open the damn door. He wouldn’t open that damn door.”

     At the time of the incident, Jackson’s sister, Nikia Jackson, was

in her bedroom on the third floor. She heard “popping” noises and

went downstairs because she thought Jackson was bouncing a

basketball. When she got to the main floor of the house, she heard

people yelling and a vehicle’s tires screeching. Out the window, she

could see a silver van leaving the driveway with five men inside.

     She then began looking for Jackson, and eventually found him

lying unresponsive on the ground of his basement bedroom, behind

his bedroom door. She observed holes in his bedroom door and saw

that Jackson’s bedroom was in disarray. Nikia called 911 and

reported that her brother had been shot. She reported that five or

six males had driven away from the house in a silver van.

     Emergency medical personnel responded to the house, where

they found Jackson unresponsive. He was transported to a local

                                  7
hospital, where he was later pronounced dead. An autopsy revealed

that Jackson died from a single gunshot wound to the chest. The

medical examiner recovered a projectile during the autopsy, which

was provided to law enforcement.

        Shortly after the shooting, a Norcross police officer was

conducting a traffic stop less than a mile from the Jacksons’ house.

He was notified about a call reporting a burglary. Minutes later,

after the officer concluded the stop, he began driving toward the

Jacksons’ house. While driving, he received updated information

from dispatch indicating that the incident involved a home invasion

and shooting and that five subjects had run from the house to a

silver van. About a minute later, the officer spotted a silver van at a

nearby intersection. The officer then pulled in behind it and

activated his patrol car’s blue lights. He then called for backup,

indicating that he believed he was behind the van identified in the

call.

        The men in the van saw the patrol car, and Lumpkin, Dozier,

Davis, and West told Johnson, who was still driving, not to pull over

                                  8
and to drive faster. They then began handing Green their guns, one

of which Green threw out the window.

     Johnson stopped the van at the next intersection, but as the

officer exited his patrol car, Johnson made a right turn. The officer

reentered his car and tapped his siren twice in order to get Johnson’s

attention. Johnson then made another right turn at the next street

and stopped. The officer approached the van and held its occupants

at gunpoint while awaiting backup. Green then hit a button that

opened the van’s back door. West and Lumpkin fled from the vehicle

on foot and hid in bushes nearby. They were apprehended by other

officers shortly thereafter.

     Inside and around the van, law enforcement officers located

four firearms, a ski mask, a stocking cap, several sets of latex gloves,

duct tape, and a laptop belonging to Jackson’s mother. They also

collected several of the men’s cell phones. In addition, they found

Lumpkin’s cell phone and a ski mask in the bushes where he and

West had been hiding and found a second ski mask and Lumpkin’s

shoes nearby. After they were apprehended by law enforcement,

                                   9
gunshot residue was found on the hands of Lumpkin, Dozier, Davis,

and West.

      At the house, investigators found a shoeprint on the basement

door that was consistent with Lumpkin’s shoe. They also found

bullet holes on the outside of Jackson’s basement bedroom door as

well as corresponding defects in various locations in the bedroom.

Investigators located shell casings and projectiles in various areas

in the basement, which investigators later determined had been

fired from two of the firearms found in the silver van. Investigators

also determined that one of those firearms had fired the bullet

recovered from Jackson’s body.

      During a custodial interview, after receiving Miranda

warnings,3 Green claimed that some people had approached him and

Johnson requesting a ride to the Mall of Georgia from Atlanta.

Green said that he did not know any of their names but obliged their

request because they offered him gas money. Green also told



      3 See Miranda v. Arizona, 

 (

, 16 LE2d 694)

(1966).
                                   10
investigators that he was asleep during the entire trip to Norcross

and that he only awoke when the van was stopped by police. When

asked if he had any nicknames, Green did not mention the nickname

“Tiger,” and he denied having a cell phone.

     Chandler and Johnson testified that they knew Green as

“Tiger” and that Green had helped plan and commit the robbery,

including by providing the silver van. The State also presented

testimony from an auto shop owner, who stated that he also knew

Green as “Tiger”; that on the day before the home invasion, Green

had driven the silver van to his shop; and that Green provided him

with his cell phone number. Johnson testified that the story Green

told about going to the Mall of Georgia was “concocted” in the van as

the group fled from the house after the shooting. One of the phones

recovered during the search of the van belonged to Green. Contact

information for Johnson, Chandler, Davis, and Lumpkin was stored

in Green’s phone. The State also presented evidence that Green

communicated with Lumpkin several times since at least November

2011 and that Green had communicated with Davis several times

                                 11
since January 2012 — including a text from Davis on the day before

the home invasion that stated, “What’s da move?” A witness testified

that the term “move” is often used to refer to a burglary, armed

robbery, or similar crime. Cell phone records indicate that Green

made and received several calls from Lumpkin, Chandler, and Davis

in the afternoon and early evening on the day of the crimes.

     Lumpkin also had contact information for Chandler, Green,

and Johnson stored in his phone. The State presented evidence that

Lumpkin sent a text to an unidentified female on February 2 stating

that he was “tryna pull one.”

     The State also presented evidence of phone calls that Green

and Lumpkin made from jail. In one call, Green mentioned to a

friend that officers had recovered his cell phone and stated that he

had been trying to show West and Davis “what money looked like.”

In another call, Lumpkin told a friend that he kicked in the door at

the Jacksons’ house.

     Green did not testify at trial. Lumpkin testified and stated

that, on the day of the shooting, Chandler asked him to ride with

                                12
him but did not tell him where they were going. Lumpkin testified

that when he and Chandler arrived at the Jacksons’ house,

Chandler indicated that they were there to commit a robbery.

Lumpkin testified that he initially refused but that he eventually

went to the house and kicked the door several times. He claimed that

he then saw someone inside the house and decided to walk away, at

which point he got into a silver van.

      (a) Lumpkin argues that the evidence presented was

insufficient as a matter of due process to support the jury’s verdict

as to the armed robbery count and the felony murder count

predicated on armed robbery. These contentions fail.4

      First, each of the felony murder counts against Lumpkin were

vacated by operation of law because he was also found guilty of

malice murder, and he was not sentenced for felony murder. See


      4 Lumpkin argues that the evidence was insufficient to support the jury’s

verdicts and that the trial court erred by denying his motion for a directed
verdict of acquittal. The test established in Jackson v. Virginia, 

(

, 61 LE2d 560) (1979), is the proper standard of review when the
sufficiency of the evidence is challenged on appeal, regardless of whether the
challenge arises from the denial of a motion for a directed verdict or the denial
of a motion for new trial in which the sufficiency of the evidence is challenged.
See Stansell v. State, 

 (1) (

) (1998).
                                       13
footnote 1, above. Lumpkin’s challenge with regard to the felony

murder count predicated on armed robbery is therefore moot. See

Mills v. State, 

 (2) (

) (2010).

     Second, the evidence presented was sufficient to support the

jury’s verdict as to the armed robbery count. When evaluating the

sufficiency of evidence as a matter of federal due process under the

Fourteenth Amendment to the United States Constitution, the

proper standard of review is whether a rational trier of fact could

have found the defendant guilty beyond a reasonable doubt. See

Jackson v. Virginia, 

 (III) (B) (

, 61

LE2d 560) (1979). This Court views the evidence in the “light most

favorable to the verdict, with deference to the jury’s assessment of

the weight and credibility of the evidence.” (Citation and

punctuation omitted.) Hayes v. State, 

 (

) (2013).

     OCGA § 16-8-41 (a) provides, in relevant part, that “[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

                                 14
immediate presence of another by use of an offensive weapon[.]”

Here, the indictment alleged that the armed robbery occurred when

a laptop belonging to Jackson’s mother was taken from Jackson’s

immediate presence by the use of a firearm.

     Although Lumpkin and the State stipulated at trial that the

laptop recovered from the silver van belonged to Jackson’s mother,

Lumpkin argues that there was no evidence that a taking occurred

in Jackson’s “immediate presence,” as required by OCGA § 16-8-41

(a). He argues that Jackson’s mother did not testify as to the laptop’s

location at the time of the incident and that her statements about

Jackson’s use of the laptop were mere speculation. Lumpkin also

argues that, under this Court’s decision in Fox v. State, 

(

) (2011), the evidence was insufficient to support the

jury’s guilty verdict on the armed robbery count because there was

no evidence as to whether the laptop was taken before or after the

perpetrators   confronted    Jackson.    We    disagree   with    both

contentions.

     First, the evidence supported a finding that the laptop was

                                  15
taken “from the person or the immediate presence” of Jackson.

Jackson’s mother testified that Jackson often used her laptop in his

basement-level bedroom. Moreover, based on physical evidence at

the scene and the testimony of Jackson’s sister, who was home and

in her upstairs bedroom at the time of the incident, the jury could

infer that the laptop was in the basement and that the perpetrators

only reached that level of the house during the incident. Specifically,

Nikia Jackson only heard noises coming from the basement where

Lumpkin and the others had entered the house and where Jackson’s

bedroom was located, and there was no damage or other sign of

violence or confrontation anywhere in the house other than the

basement. Because Jackson was in the basement at the time and the

basement area was under his immediate control, the evidence

presented at trial was sufficient to satisfy the “immediate presence”

requirement for armed robbery. See Dozier v. State, 

 (

) (2019) (considering sufficiency of evidence of

armed robbery for one of Lumpkin’s co-defendants).

     As to the second issue, the State is required to prove beyond a

                                  16
reasonable doubt that the defendant’s use of an offensive weapon

occurred shortly “prior to or contemporaneously with the taking.”

(Citation and punctuation omitted.) Benton v. State, 

 (1) (b) (

) (2019). Lumpkin argues that this case

mirrors the facts of Fox, where we determined that the evidence was

insufficient as to an armed robbery charge because it supported “two

equally    reasonable   hypotheses”    —     that   the   defendant

surreptitiously took possession of the stolen property before

confronting the victim (who was later found dead in a room near

where the property had been kept) or that the defendant confronted

and killed the victim before taking the items. Fox, 

 (1)

(b).

       But as in Benton, no evidence presented at trial supports

Lumpkin’s contention that the theft of the laptop occurred before the

perpetrators’ use of force against Jackson. See Benton, 

 (1) (b). Here, an exterior door was kicked in, and four armed men

rushed inside to the house’s basement, where Jackson’s bedroom

was located and where he was at the time. The evidence allowed the

                                 17
jury to infer that there was then immediate commotion, that the

perpetrators fired multiple gunshots in the basement’s common

area, and that they continued firing into Jackson’s bedroom,

eventually hitting him with a single, fatal gunshot after he refused

to open his bedroom door. In contrast to Fox, there was no evidence

that the perpetrators’ entry into the house was surreptitious or that

Jackson confronted them only after they had taken the laptop.

Instead, the evidence suggested only that the taking of the laptop

occurred during or soon after the perpetrators’ sudden and fatal

confrontation with Jackson. The evidence was therefore sufficient to

support the jury’s guilty verdict on the armed robbery count. See

Dozier, 

 (affirming armed robbery conviction of

Lumpkin’s co-defendant); Davis v. State, 

 (1) (

) (2019) (same). See also Hester v. State, 

(2) (

) (2007) (“It is well-settled that a defendant commits

a robbery if he kills the victim first and then takes the victim’s

property.” (citation and punctuation omitted)).

     (b) Lumpkin has not challenged the sufficiency of the evidence

                                 18
presented at trial as to the remaining counts for which he was found

guilty and sentenced: malice murder, aggravated assault, burglary,

and possession of a firearm during the commission of a felony.

However, in accordance with this Court’s practice in murder cases,

we have reviewed the evidence presented as to those counts.5 When

viewed in the light most favorable to the verdicts, the evidence

presented at trial and summarized above was sufficient to authorize

a rational jury to find Lumpkin guilty beyond a reasonable doubt of

each of these crimes. See Dozier, 

 (affirming malice

murder, burglary, and firearms possession convictions of Lumpkin’s

co-defendant); West v. State, 

 (1) (a) (

)

(2019) (affirming malice murder conviction of Lumpkin’s co-

defendant). See also Brown v. State, 

 (1) (b) (

) (2017) (“It was for the jury to determine the credibility of

the witnesses and to resolve any conflicts or inconsistencies in the


     5 We remind litigants that the Court will end its practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, 

 (4) (

) (2020). The Court began assigning cases to the
December Term on August 3, 2020.
                                     19
evidence.” (citation and punctuation omitted)).

     (c) Green has not challenged the sufficiency of the evidence

presented at trial as to the only count for which he was found guilty

and sentenced: felony murder predicated on armed robbery.

However, we review sua sponte the evidence presented against him

as to that charge.

     Like Lumpkin, Green was charged as a party to the crimes of

armed robbery and felony murder predicated on armed robbery. As

we discussed in Division 1 (a) above, the evidence presented at trial

was sufficient to support the jury’s verdict that the crime of armed

robbery occurred. Although there is no evidence that Green directly

committed any of the crimes, evidence of his involvement in the

planning of the robbery as well as his presence, companionship, and

conduct with other perpetrators before, during, and after the

robbery supported the jury’s conclusion that Green was a party to

the armed robbery. See Heard v. State, 

, 82 (2) (

) (2020); OCGA § 16-2-20. And because the evidence authorized

the jury to find that Jackson’s death occurred during the commission

                                 20
of that felony, the evidence was sufficient to support the jury’s guilty

verdict on the felony murder count predicated on armed robbery. See

OCGA § 16-5-1 (c).

     2. Green argues that the trial court abused its discretion by not

admitting Dozier’s statements to a police investigator suggesting

that Green had not been involved in the planning and execution of

the robbery. Green argues that because Dozier was legally

unavailable to testify at trial, his statements should have been

admitted pursuant to the exception to the hearsay rule for

statements against interest set forth in OCGA § 24-8-804 (b) (3).

     The record shows that Dozier and his counsel met with

prosecutors in March 2012. At the time, Dozier and several of the

other perpetrators had been arrested but not yet indicted. The

record reflects that the State had provided Dozier with a letter

offering immunity in exchange for any information he was willing to

provide about the crimes. In its filings before the trial court, the

State characterized its offer as a “promise of complete testimonial

immunity in that the State provided Dozier with a written

                                  21
agreement that any statements he provided, or any evidence derived

from his statements, would not be used against him.” The State

represented to the trial court that Dozier met with the State and

gave statements to prosecutors under the promise of that immunity.

Green’s motion to admit Dozier’s statements indicated that Dozier

said that he “did not know why Green was present because he had

nothing to do with the planning of the home invasion.” Green’s

counsel also indicated to the trial court that Dozier stated that

Green “was never there doing a plan” and that he “didn’t know

anything about them doing a plan.” Dozier also informed the State

that the “only people involved” were himself, Johnson, and

Chandler. Dozier’s case was later severed from that of his other co-

defendants because of the information he had provided to the State

under the promise of immunity.

     Dozier apparently recanted some of the statements he made to

the investigators. He would later stand trial and be convicted of

several offenses in connection with this incident. See Dozier, 

 n.1. He was subpoenaed to testify at Green and Lumpkin’s

                                 22
trial, but by the time it began, Dozier had already been convicted

and was seeking a new trial. He asserted his Fifth Amendment

privilege against self-incrimination and refused to testify.

     Pertinent to this appeal, a declarant is “unavailable as a

witness” if the declarant is “exempted by ruling of the court on the

ground of privilege from testifying concerning the subject matter of

the declarant’s statement[.]” OCGA § 24-8-804 (a) (1). Here, the trial

court accepted Dozier’s assertion of his Fifth Amendment privilege,

which made him legally unavailable under OCGA § 24-8-804 (a) (1).

See Shealey v. State, 

 (2) (b) (

) (2020)

(witness’s “invocation of his Fifth Amendment privilege against

compelled self-incrimination, once accepted by the trial court, made

him ‘unavailable as a witness’” under OCGA § 24-8-804 (a) (1)). The

State has never challenged that ruling.

     We now turn to whether the trial court abused its discretion by

not admitting Dozier’s statements pursuant to OCGA § 24-8-804 (b)

(3), which provides that a statement against interest “shall not be

excluded by the hearsay rule if the declarant is unavailable as a

                                  23
witness[.]” The rule further provides that a statement against

interest is a statement:

           (A) Which a reasonable person in the declarant’s
     position would have made only if the person believed it to
     be true because, when made, it was so contrary to the
     declarant’s proprietary or pecuniary interest or had so
     great a tendency to invalidate a claim by the declarant
     against another or to expose the declarant to civil or
     criminal liability; and
           (B) Supported by corroborating circumstances that
     clearly indicate the trustworthiness of the statement if it
     is offered in a criminal case as a statement that tends to
     expose the declarant to criminal liability[.]

     OCGA § 24-8-804 (b) (3) is materially identical to Federal Rule

of Evidence 804 (b) (3). Thus, although there is a body of Georgia

case law concerning the use of hearsay statements against a

declarant’s interests that was in place before the current Evidence

Code came into effect, see, e.g., Timberlake v. State, 

(1) (

) (1980), we look to federal appellate decisions,

particularly those of the United States Supreme Court and the

Eleventh Circuit construing Federal Rule 804 (b) (3), in interpreting

OCGA § 24-8-804 (b) (3). See State v. Orr, 

 (3) (

) (2019); State v. Almanza, 

 (2) (820

                                  

) (2018).

     Here, the trial court found that Dozier made his statements to

the State’s investigators under a promise of use and derivative-use

immunity. As a result, the trial court determined that Dozier’s

statements regarding Green’s lack of involvement in the crimes

could not expose Dozier to criminal liability and were therefore not

against his penal interests. The trial court instead noted that, at the

time Dozier made the statements, they were actually in Dozier’s

interests.

     We see no abuse of discretion in the trial court’s ruling. We

agree that a statement given under a promise of use and derivative-

use immunity is not against the declarant’s penal interest. As we

have previously noted, use and derivative-use immunity protect a

witness from the use of potentially self-incriminating testimony and

the fruits of that testimony against him in a future prosecution. See

State v. Hanson, 

, 741 (1) (

) (1982). Because

such statements do not expose the declarant to criminal liability,

they are not against the declarant’s penal interests and are not

                                  25
admissible under OCGA § 24-8-804 (b) (3). See United States v.

Slatten, 

 (VII) (B) (2) (D.C. Cir. 2017) (co-

defendant’s statement not admissible as a statement against

interest where the statement was immunized); United States v.

Williams, 809 F2d 1072, 1083 (II) (B) (5th Cir. 1987) (declarant’s

statements made to federal agents under grant of immunity were

not statements against interest); United States v. Gonzalez, 559 F2d

1271, 1273 (5th Cir. 1977) (grand jury testimony given under a grant

of immunity is not a statement against interest). See also Olds v.

State, 

 (2) n.12 (

) (2016) (noting that

after the Eleventh Circuit was carved out of the old Fifth Circuit,

the Eleventh Circuit adopted all decisions of the former Fifth Circuit

adopted prior to October 1, 1981, as binding precedents, thus

making decisions of the former Fifth Circuit part of the decisional

law of the Eleventh Circuit).

     Because we determine that the trial court did not abuse its

discretion by determining that Dozier’s statements were not

admissible as statements against interest under OCGA § 24-8-804

                                 26
(b) (3), we need not consider whether the trial court abused its

discretion by determining that the statements were not sufficiently

corroborated. This enumeration of error fails.

     3. Both Lumpkin and Green assert that the trial court erred by

denying their pre-trial motions to suppress evidence obtained in a

search of the van after it was stopped by a police officer. We see no

error.

     In reviewing a ruling on a motion to suppress, we review the

trial court’s factual findings for clear error and its legal conclusions

de novo. See Kennebrew v. State, 

 (

)

(2018). At a pre-trial hearing on the appellants’ motions, the officer

who conducted the stop testified that around the time of the

incident, he was conducting an unrelated traffic stop when he

received a call from the police dispatch regarding a burglary at the

Jacksons’ house on Autry Street in Norcross. At that time, the officer

was approximately three-quarters of a mile from the house. Minutes

later, after the officer concluded the stop, he began driving toward

the Jacksons’ house. While driving, he received updated information

                                  27
from dispatch indicating that the incident involved a home invasion

and shooting. Dispatch advised officers that a witness in the house

had reported seeing five men running up the house’s driveway to a

silver van, which then drove away. About a minute later, the officer

observed a silver van driving southbound on West Peachtree Street.

The officer knew that West Peachtree Street intersected Autry

Street and that “the only way to exit Autry Street is onto West

Peachtree Street.” Due to dark window tinting on the van, the officer

could not, at that time, see how many people were inside.

     The officer then began following the vehicle and activated his

blue lights to initiate a traffic stop. The van stopped at an

intersection, and the officer exited his vehicle to walk toward the

van. The van then made a right turn at the intersection. The officer

re-entered his vehicle and tapped his siren twice. The vehicle then

made another right turn onto an adjacent street and came to a stop.

The officer then approached the vehicle and saw two men, later

identified as Lumpkin and West, exit the van and run away. The

officer, who by that time had been joined by another officer, held four

                                  28
men in the van at gunpoint and then proceeded to search the van.

The search yielded significant evidence.

     Lumpkin and Green argued that the officer did not have

sufficient suspicion to conduct the stop because his only information

at the time was that he should be looking for a silver van with five

men inside. They argued that, when the officer first observed the

van, he could not see how many people were inside, nor had he

observed the van committing any traffic violations.6 The trial court

denied the motions to suppress, determining that the stop was

justified by the officer’s receipt of a description of the silver van, the

fact that he observed it close in time and near the location of the

reported crime scene, and the fact that the van was coming from the

direction of the crime scene on the only road from which a vehicle

could exit the street on which the house was located.




     6 The trial court found that after the officer activated his blue lights,

made an initial stop of the van, and exited his vehicle, the van drove away,
precipitating further pursuit of the van by the officer. However, because we
determine that the officer’s response to the lookout call gave him sufficient
suspicion to initiate the stop, we need not consider whether other grounds,
such as a potential traffic violation, might have justified the stop.
                                     29
     The traffic stop in this case was a Terry stop. See Terry v. Ohio,

 (

, 20 LE2d 889) (1968). Terry permits an

officer to conduct a brief investigative stop of a vehicle if the officer

has “reasonable, articulable suspicion that a crime may have been

committed.” Stafford v. State, 

 (

)

(2008). Such a stop must be justified by “specific and articulable

facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion.” Terry, 

 (III).

Articulable suspicion is “less than probable cause, but greater than

mere caprice.” (Citation and punctuation omitted.) Stafford, 

. An officer may conduct a Terry stop based on information

received in a police lookout call, sometimes called a “be on lookout”

or “BOLO,” so long as the officer conducting the stop articulates

specific facts which, together with rational inferences drawn

therefrom, provide a reasonable basis for the stop. Humphreys v.

State, 

 (7) (

) (2010), disapproved on other

grounds by Willis v. State, 

 (

) (2018).

Where an officer lacks reasonable suspicion to stop a vehicle, the

                                   30
traffic stop violates the Fourth Amendment, and evidence obtained

as a result of the stop must be suppressed. See Jones v. State, 

 (2) (

) (2012).

     The traffic stop here was valid under Terry. The officer received

a description of the getaway vehicle from dispatch. He then observed

a vehicle matching that description less than a minute from the time

he received the description and less than a mile from the reported

crime scene. See Humphreys, 

 (7) (noting that “the

short time between the transmission of the lookout and [the officer’s]

spotting the vehicle made it even more likely that the vehicle he saw

was in fact the vehicle described in the lookout.”); McNair v. State,

 (1) (

) (2004) (stop justified where

officer observed vehicle matching description given in BOLO coming

from the area of the crime scene within minutes of the BOLO being

issued). These observations gave the officer adequate suspicion to

activate his blue lights, initiate the initial vehicle stop, and then stop

the vehicle again after a brief pursuit. Accordingly, the officer

conducted a valid Terry stop of the van, and the trial court did not

                                   31
err by denying the appellants’ motions to suppress.

     4. We have identified a sentencing error with respect to

Lumpkin (Case No. S20A0734). The trial court sentenced Lumpkin

for both malice murder and aggravated assault. But, as charged in

the indictment, the malice murder charge and the aggravated

assault charge were both based on the gunshot that struck Jackson

in the chest and killed him. The trial court should have merged those

crimes, and because it did not, we vacate Lumpkin’s conviction and

sentence for aggravated assault. See Reddings v. State, 

 (2) (

) (2013).

     Judgment affirmed in part and vacated in part in Case No.
S20A0734. Judgment affirmed in Case No. S20A0879. All the
Justices concur.




                                 32
                   Decided September 28, 2020.

     Murder. Gwinnett Superior Court. Before Judge Tom Davis.
     Wayne L. Burnaine, for appellant (case no. S20A0734).
     Clark & Towne, Jessica R. Towne, for appellant (case no.
S20A0879).
     Daniel J. Porter, District Attorney, Lee F. Tittsworth, Samuel
R. d’Entremont, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Matthew D. O’Brien, Assistant Attorney General, for appellee.




                                 33