Agee v. State

¶1In the Supreme Court of Georgia

¶2 Decided: April 19, 2021

¶3 S21A0372. AGEE v. THE STATE.

¶4 LAGRUA, Justice.

¶5 Appellant Derrick Agee was found guilty at a bench trial of

¶6malice murder and other crimes in connection with the shooting

¶7death of Steven Lowe and assault of Monitaaz Simmons. On appeal,

¶8Appellant contends that the evidence was insufficient to support his

¶9convictions because the two witnesses who identified him as the

¶10shooter later recanted their statements. Additionally, Appellant

¶11challenges the validity of his waiver of his right to a jury trial.

¶12Concluding these claims lack merit, we affirm. 1

¶13 1 The shooting occurred on December 7, 1997. On August 10, 2001, a Fulton County grand jury returned a six-count indictment against Appellant, charging Appellant with malice murder, felony murder, one count of aggravated assault against Lowe, one count of aggravated assault against Simmons, and two counts of possession of a firearm during the commission of a felony. At the conclusion of a bench trial from February 13 to 14, 2006, the  1. Viewed in the light most favorable to the verdicts, the

¶14evidence presented at Appellant’s trial showed that in the early

¶15morning hours of December 7, 1997, Appellant went to Club Escape

¶16in Fulton County with friends to celebrate a birthday and paid for a

¶17VIP room for the celebration. Appellant arrived with friends in

¶18Appellant’s car, a black Oldsmobile Cutlass with a white top, a

¶19decorative racing stripe, and gold rims. The same night, Lowe, a

¶20former security guard at the club, was fired for carrying a gun inside

¶21the club in direct violation of the club’s policy. However, Lowe was

¶22judge found Appellant guilty on all counts. On February 24, 2006, the trial court sentenced Appellant to serve a life sentence for malice murder; 20 consecutive years on the aggravated assault charge against Simmons; and 10 consecutive years for each firearm possession charge. The remaining charges merged for sentencing purposes or were vacated by operation of law. The trial court ordered Appellant to serve the sentence in this case after completion of Appellant’s life sentence in a separate murder case. See Agee v. State, 279 Ga. 774 (621 SE2d 434) (2005). Appellant timely filed a motion for new trial on February 27, 2006. In July 2019, the trial court held a status conference, at which the court granted Appellant’s request to have 90 days to consider whether to proceed with the motion for a new trial. At another status conference on October 17, 2019, Appellant, through counsel, requested that the court deny his motion for new trial to enable him to pursue an appeal. The trial court granted the request and denied the motion for new trial on October 31, 2019. Appellant then filed a timely notice of appeal on November 26, 2019, amending it on December 10, 2019. This Court docketed Appellant’s case for the term beginning in December 2020, and the case was submitted for a decision on the briefs. 2 allowed to remain in the club after being terminated.

¶23 Sometime after Appellant and his group arrived, Reginald

¶24Lindsay, the club’s manager, witnessed a fight break out between

¶25Lowe and a member of Appellant’s group known as “Peanut.” About

¶26a dozen patrons got involved, including some of Appellant’s friends.

¶27Club security escorted Appellant and most of his group out of the

¶28club. Lowe and Peanut were separated inside the club to avoid

¶29further altercations.

¶30 Lindsay testified that as he was removing the disorderly

¶31patrons from the club, he heard three gunshots ring out; Lowe had

¶32stepped outside and fired warning shots into the air. Lindsay

¶33demanded that Lowe stop, and Lowe went back inside the club.

¶34 Patrons who had left the club following the altercation started

¶35getting back out of their cars and returning to the club. Appellant

¶36confronted Lindsay and demanded a refund for the VIP room.

¶37Lindsay denied the refund and, noting that he was a reserve sheriff’s

¶38deputy, told Appellant to go home. Appellant responded, “No. It

¶39ain’t over. And if you are the police, you better call a thousand more

¶40 3 because we’re about to light this motherf***** up.” Lindsay then

¶41testified that he saw Appellant go to an older model car with a stripe

¶42across the hood and heard the trunk open. Lindsay then returned

¶43to the club.

¶44 Inside the club, Lindsay discovered Lowe and Peanut in the

¶45lobby; Lowe was upset and still had the gun in his hand. Peanut

¶46and Lindsay began trying to persuade Lowe to release the gun.

¶47Meanwhile, another club security guard came inside and reported

¶48that he saw someone with a gun in the parking lot. Lindsay went to

¶49find a phone to call police, at which point multiple shots rang out in

¶50the lobby. Lowe was shot 11 times and pronounced dead at the

¶51scene; one other patron, Monitaaz Simmons, was shot in the leg, but

¶52survived. The medical examiner testified that Lowe’s cause of death

¶53was multiple gunshot wounds to the back, right arm, and both legs.

¶54When police arrived, cars were fleeing the parking lot.

¶55 Eleven days after the shooting, investigators interviewed

¶56Tobias Mathews, a member of Appellant’s group on the night of the

¶57shooting, and he identified Appellant as the shooter in a written

¶58 4 statement to police. According to Mathews’ written statement,

¶59Appellant went to his car to get his gun moments after Lowe fired

¶60warning shots. Appellant then went to the entrance of the club,

¶61opened the door with his leg, and shot “[a]bout 17” times into the

¶62club. Appellant shot until he ran out of bullets and, as he was

¶63shooting, shouted “I told you I was going to kill you, motherf*****.”

¶64Mathews and two other members of the group pulled Appellant

¶65away. Appellant jumped into the passenger seat of his car, and the

¶66car sped away. Based on this information, Appellant was arrested

¶67on December 19, 1997.

¶68 About four days after the interview with Mathews, police

¶69received a tip about a black Oldsmobile Cutlass with a white top and

¶70white racing stripe, covered by a tarp and parked behind a house.

¶71Police determined that the house the car was parked behind

¶72belonged to Appellant’s mother.

¶73 Terence Johnson, who was working in the parking lot when the

¶74shooting occurred, testified that after the shooting, he saw a two-

¶75toned, older model car pulling away.

¶76 5  On April 11, 2001, while Detective Brett Zimbrick was

¶77conducting an investigation into a home invasion and shooting that

¶78occurred in Derrick Byrd’s apartment, Byrd, who was a member of

¶79Appellant’s group on the night of the December 7, 1997 shooting,

¶80sought to give Zimbrick information about the club shooting. Byrd

¶81recalled the events of that night and identified Appellant as the

¶82shooter. Byrd stated that after security removed Appellant’s group

¶83from the club, Appellant was upset about how the club security

¶84officers treated him. Then, after Lowe fired the warning shots, Byrd

¶85saw Appellant run to his car and heard, from the direction of

¶86Appellant’s car, a pistol slide being pulled back. Byrd saw Appellant

¶87approach the club with a pistol and fire two rounds at the club door.

¶88Appellant told Byrd to “get away from the door because I am fixin’

¶89to shoot this motherf***** up.” Byrd stated that Appellant emptied

¶90his gun and said, “I am out” before fleeing in his car.

¶91 Appellant argues that the evidence was insufficient to support

¶92his convictions because only Mathews and Byrd were eyewitnesses

¶93to the shooting, and at trial, both witnesses recanted their

¶94 6 statements to police identifying Appellant as the shooter. Mathews

¶95testified that he did not recall providing a statement to police, that

¶96he did not remember some of the events that were in his statement

¶97to police, and that he did not see a shooter that night. Byrd testified

¶98that the statement he provided to police was “full of lies” and that

¶99he did not see the shooter because he had already fled the scene.

¶100Appellant argues that this evidence was insufficient to prove his

¶101guilt beyond a reasonable doubt. We disagree.

¶102 When evaluating the sufficiency of evidence, “the relevant

¶103question is whether, after viewing the evidence in the light most

¶104favorable to the prosecution, any rational trier of fact could have

¶105found the essential elements of the crime[s] beyond a reasonable

¶106doubt.” Jackson v. Virginia, 443 U. S. 304, 319 (III) (B) (99 SCt 2781,

¶10761 LE2d 560) (1979) (emphasis omitted). In this analysis, “we view

¶108all evidence in the light most favorable to the trial court’s verdict,

¶109and the defendant no longer enjoys the presumption of innocence.

¶110We do not re-weigh testimony, determine witness credibility, or

¶111address assertions of conflicting evidence.” Wimberly v. State, 302

¶112 7 Ga. 321, 323 (1) (806 SE2d 599) (2017) (citation and punctuation

¶113omitted).

¶114 Here, the record shows that Appellant admitted that he was at

¶115the club on the night of the shooting, that he was upset with security

¶116for forcing him out of the club, and that Lowe was one of the people

¶117who angered him. Additionally, after Appellant argued with

¶118Lindsay about a refund, Lindsay heard Appellant threaten to “light

¶119this motherf***** up.” Johnson, the parking attendant employee,

¶120witnessed a two-toned, older model vehicle matching the description

¶121of Appellant’s car screeching away after the shooting. A car

¶122matching that description was later found at Appellant’s mother’s

¶123house, hidden under a tarp.

¶124 Moreover, despite their later recantations, Mathews and Byrd

¶125both identified Appellant as the shooter in written statements to

¶126police. Mathews told police that Appellant had gone to his car,

¶127retrieved a gun, and returned to the club where he shot multiple

¶128times through the doorway of the club. Byrd told a similar story

¶129identifying Appellant as the shooter, adding that Appellant was

¶130 8 angry and seeking retribution.

¶131 Appellant argues that, without the written statements of Byrd

¶132and Mathews, the evidence merely places Appellant inside the club

¶133on the night of the shooting. However, the jury was authorized to

¶134credit these witnesses’ statements to police over their recantations

¶135at trial. See Bullard v. State, 307 Ga. 482, 484-485 (1) (837 SE2d

¶136348) (2019); see also Cartwright v. Caldwell, 305 Ga. 371, 379 (2) (a)

¶137(825 SE2d 168) (2019); Robbins v. State, 300 Ga. 387, 391 (793 SE2d

¶13862) (2016) (“A prior inconsistent statement of a witness who takes

¶139the stand and is subject to cross-examination is admissible as

¶140substantive evidence . . .”). “The fact that the [factfinder] resolved

¶141the conflicts in the evidence or credibility for the witnesses adversely

¶142to [Appellant] does not render the evidence insufficient.” Bullard,

¶143307 Ga. at 485 (1) (quoting Jackson, 443 U. S. at 319). We therefore

¶144conclude that the written statements, together with the other

¶145evidence presented at trial, was more than sufficient to authorize a

¶146rational finder of fact to determine Appellant guilty beyond a

¶147reasonable doubt of the crimes for which he was convicted. See

¶148 9 Jackson, 443 U. S. at 319.

¶149 2. Appellant contends that he did not knowingly, intelligently,

¶150and voluntarily waive his right to a jury trial. This argument is

¶151meritless.

¶152 The constitutional right to a jury trial may be waived only if

¶153the State proves beyond a reasonable doubt that a defendant did so

¶154knowingly, voluntarily, and intelligently. See Balbosa v. State, 275

¶155Ga. 574, 575 (1) (571 SE2d 368) (2002) (jury trial waiver by defense

¶156counsel in the presence of the defendant was not enough to

¶157constitute the defendant’s own knowing, intelligent, and voluntary

¶158jury trial waiver). The State can do so by either (1) showing on the

¶159record that the defendant was cognizant of the right being waived;

¶160or (2) supplementing the record through the use of extrinsic evidence

¶161which affirmatively shows that the waiver was knowingly,

¶162voluntarily, and intelligently made. See Johnson v. Smith, 280 Ga.

¶163235, 236 (626 SE2d 470) (2006). We review a trial court’s acceptance

¶164of a waiver of a constitutional right for clear error. See Lyman v.

¶165State, 301 Ga. 312, 317 (2) (800 SE2d 333) (2017); Seitman v. State,

¶166 10 320 Ga. App. 646, 646 (740 SE2d 368) (2013).

¶167 Here, the record indicates that Appellant made a knowing,

¶168voluntary, and intelligent waiver of his right to a jury trial. Before

¶169the bench trial, the following colloquy occurred on the record:

¶170 COURT: . . . Well let me—Mr. Agee, I understand that you and—I’m making an assumption, but I want to confirm it, that you and [defense counsel] discussed this matter of you electing to have a bench trial and the pros and cons of doing that. Did you not? APPELLANT: Yes, sir. COURT: Okay. And the law requires that the defendant personally waive the right to a jury trial; because obviously, a jury trial is a constitutional right that everyone has guaranteed to them. Do you understand you’ve got a right to a jury trial if you chose to have one? APPELLANT: Yes, sir. COURT: Okay. And with a bench trial, the court will make the—will be the finder of fact as well as the person that presides over the law, as opposed to in a jury trial, the jury would be the fact-finder and the court would provide the law for the jury. Do you understand the difference in that? APPELLANT: Yes, sir. COURT: All right. And you, in fact, do you want to waive your right to a jury trial and elect to have a bench trial? APPELLANT: Yes, sir.

¶171 Appellant argues that this colloquy fails to establish that his

¶172waiver was voluntary or that he understood the ramifications of

¶173 11 making such a waiver. We disagree.

¶174 When a defendant seeks to waive his or her right to a jury trial,

¶175“[a] trial court should ask the defendant sufficient questions on the

¶176record so that the court can ensure the defendant’s waiver is

¶177knowing, voluntary, and intelligent.” Watson v. State, 274 Ga. 689,

¶178691 (2) (558 SE2d 704) (2002). Here, the trial court asked Appellant

¶179on the record whether he was electing to waive his right to a jury

¶180trial and whether he understood the advantages and disadvantages

¶181of that choice. The court also highlighted the fact that a jury trial

¶182was the Appellant’s constitutional right, and the court made clear

¶183that the judge, not a jury, would be the finder of fact in his case.

¶184Finally, the court confirmed a second time with Appellant that he

¶185wanted to waive his right to a jury trial and elect to have a bench

¶186trial instead. In each instance, Appellant responded that he

¶187understood and was opting to forgo a jury trial. Based on the record,

¶188we conclude that Appellant personally, knowingly, intelligently, and

¶189voluntarily waived his right to a jury trial. See Watson v. State, 274

¶190Ga. 689, 690-691 (2) (558 SE2d 704) (2002) (waiver was knowing,

¶191 12 intelligent, and voluntary where defendant was asked personally on

¶192the record whether he wanted to proceed with a bench trial, and

¶193defendant orally affirmed the waiver).

¶194 Appellant also contends that additional measures should be

¶195taken in order to ensure that a defendant’s waiver is knowing,

¶196intelligent, and voluntary, such as specific inquiries into the

¶197defendant’s education and mental status, or allowing the defendant

¶198the opportunity to watch another bench trial before making a

¶199decision, citing Johnson v. State, 157 Ga. App. 155, 155-156 (2) (276

¶200SE2d 667) (1981) (noting that the trial court inquired into education

¶201and mental status and gave the defendant additional time to

¶202consider the advantages and disadvantages of a bench trial), and

¶203Safford v. State, 240 Ga. App. 80, 82-83 (2) (522 SE2d 565) (1999)

¶204(noting that the trial court gave the defendant the opportunity to

¶205watch a bench trial before proceeding with his own).

¶206 However, in both of those cases, the specific inquiries and the

¶207opportunity to observe a bench trial were afforded after the trial

¶208court determined that the defendant knowingly, intelligently, and

¶209 13 voluntarily waived a jury trial, and were additional measures that

¶210the trial court elected to provide. Such measures are not

¶211categorically required for a trial court to establish that a defendant’s

¶212waiver is knowing, intelligent, and voluntary. See Brown v. State,

¶213277 Ga. 573, 574 (2) (592 SE2d 666) (2004) (defendant personally,

¶214knowingly, voluntarily, and intelligently waived a jury trial after he

¶215was informed of the various aspects of a jury trial and the

¶216consequences of relinquishing that right, and then “only after

¶217receiving [defendant’s] oral assurance that he wished to waive trial

¶218by jury.”). Therefore, we decline to extend the requirements for a

¶219valid jury trial waiver as asserted by Appellant, the trial court did

¶220not clearly err in finding such a waiver, and this enumeration of

¶221error is without merit.

¶222 Judgment affirmed. All the Justices concur.

¶223 14