THOMAS v. THE STATE OF GEORGIA NIXON v. THE STATE OF GEORGIA

Appellants Julius Thomas and Desmond Nixon were tried jointly and

convicted of murder and related offenses in connection with a crime spree that

took place over three days in January 2013.1 Both men now appeal, arguing that

the evidence was insufficient to support their convictions and averring claims

of ineffective assistance of counsel. Though we find no merit to the ineffective

assistance claims raised by both Appellants, we do find error with regard to

Nixon’s sentences for three counts of possession of a firearm during the

commission of a felony. See Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1)

(2014) (merger error, even if not raised by the parties, may be addressed by

appellate court sua sponte). Therefore, we must vacate those aspects of Nixon’s

sentences. Further, though the evidence is sufficient to support all of Nixon’s

criminal convictions and sentences, as well as Thomas’ convictions and

sentences as they relate to Bandera, we reverse Thomas’ conviction and sentence

for the armed robbery and set aside his guilty verdicts for the aggravated

assaults of B. W. based upon insufficient evidence proving he was a party to

these crimes.

Sufficiency of the Evidence

1. Both Thomas and Nixon argue that the evidence presented at their

joint trial was insufficient to support their convictions. Viewed in the light most

favorable to the jury’s verdict, the evidence adduced at trial established that

Julius Thomas, Desmond “Philly” Nixon and Ishmael “Smurf” Carter were close

friends and members of a rap group known as B.G.M. Witnesses recalled that

Thomas and Nixon were so close that they would periodically live in the same

house and answer incoming calls on the other’s cell phone. In January 2013, B.

W., Marcelino Rodriguez and Rosendo Bandera were victimized as follows:

B. W. Rape and Armed Robbery

On January 7, 2013, B.W., who was working at a China Express in

Clayton County, Georgia, was delivering her last order of the night to 293

Roxbury Drive, which is located approximately one block from Thomas’ then

residence. Upon B. W.’s arrival at the house, a man she later identified as Carter

3

was standing outside near the driveway. Carter approached and asked to sit

inside the vehicle until his friend brought out money to pay for the order. B. W.

allowed him to sit in the front passenger’s seat and, despite having flirted with

her on the phone earlier in the evening when he was placing the delivery order,

Carter was now quiet and texting on a phone.

Eventually, another man came outside and spoke with Carter about paying

for the meal, leaving the front passenger door open. The men returned to the

driver’s side door where B. W. was still seated. Shortly thereafter, she felt a gun

against her right side. She turned and faced a third man, later identified as

Nixon, who demanded money from her. B. W. said she did not have any money,

at which point Nixon took her cell phone and told her to remove her clothes.

She complied. Nixon proceeded to rape her in the front seat of the car at

gunpoint while the other two men blocked the driver’s side door. The group left

B. W. in the car and headed back into the house, claiming that they were going

to prepare the house to kill B. W., but the men never returned.

B. W. later identified Nixon and Carter from photographic lineups as two

of the men involved in her assault, but she was unable to identify Thomas as the

third man. Phone records introduced at trial showed that Thomas’ cell phone

4

was used to place the delivery order with China Express the night of the crimes.

Law enforcement also located Nixon’s fingerprints in the car where B. W. was

raped. Finally, after B. W. replaced her cell phone and re-activated her old

phone number, she began receiving phone calls for “Philly” and “Smurf.” In

fact, Nixon’s girlfriend testified at trial that, after the night B. W. was raped, she

would reach Nixon by calling the phone number belonging to B. W.’s stolen cell

phone.

Marcelino Rodriguez Armed Robbery

On January 22, 2013, around 11:00 p.m., Marcelino Rodriguez was

walking on Old Dixie Highway in Clayton County, Georgia, when a man

walked up to him, held a gun to Rodriguez’s forehead, and demanded money.

Rodriguez handed over his wallet and cell phone. He then saw a second person

get out of a green Ford Escort. Rodriguez removed his jacket and threw it at the

armed man in an attempt to distract him, but the man moved out of the way and

hit Rodriguez over the head with the gun, causing a half-inch laceration to the

base of Rodriguez’s skull. Rodriguez later identified Nixon in a photographic

lineup as the man who pulled the gun on him, but he could not identify the

driver of the Ford Escort.

5

Bandera Murder

On January 24, 2013, Rosendo Bandera was working as a taxi cab driver

in Clayton County, Georgia. Bandera’s last customer testified at trial that, as he

dropped her off in Morrow around 9:45 p.m., he mentioned he had two other

fares waiting to be picked up. Cell phone records show that calls from both

Thomas’ cell phone and Rodriguez’s stolen cell phone were placed to Bandera

on the night of the murder; Bandera’s driver’s log also included entries with

Thomas’ cell phone number. Further, text messages between Thomas’ and

Rodriguez’s phones showed two people discussing the robbery of the taxi

driver. At trial, Thomas’ girlfriend confirmed that he sent her text messages

from Rodriguez’s cell phone throughout the day of Bandera’s murder.

Around 10:00 p.m. on January 24, surveillance footage showed Bandera

picking a customer up from a CVS parking lot. The CVS was very close to

Thomas’ house where he and Nixon were seen together earlier in the evening.

Cell tower records show that the cell phone activity from Thomas’ phone and

Rodriguez’s stolen phone occurred near this CVS. At 10:25 p.m., Bandera was

found dead of a gunshot wound to the head in his taxi cab, which was located

in a neighborhood a couple miles from the CVS. After the murder, Nixon

6

warned Thomas’ girlfriend not to call him “Philly” anymore; Thomas fled the

state after telling his girlfriend that he needed to leave Georgia.

Later in the investigation, officers were informed by two different jail

inmates (Brandon Jones and Bryant Douglas) that Nixon had bragged to them

about his role in the crime spree. At trial, both Jones and Douglas testified to

the numerous inculpatory statements made by Nixon in their presence.

Nixon argues that the evidence relied upon by the State was insufficient

to support his convictions and sentences. Namely, Nixon alleges that the

testimony of the jailhouse informants was unreliable and wholly circumstantial

and that, without their testimony, the remainder of the State’s evidence fails to

prove his guilt beyond a reasonable doubt. We disagree.

When evaluating the sufficiency of evidence, the proper standard for

review is whether a rational trier of fact could have found the defendant guilty

beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SCt

2781, 61 LE2d 560) (1979). “This Court does not reweigh evidence or resolve

conflicts in testimony; instead, evidence is reviewed in a light most favorable

to the verdict, with deference to the jury’s assessment of the weight and

credibility of the evidence.” Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313)

7

(2013). The issues raised by Nixon go to the weight of the evidence against

him, which is a question for the jury to decide, not this Court. Id. Based on the

foregoing, the evidence authorized the jury to find Nixon guilty beyond a

reasonable doubt of the crimes for which he was convicted.

Thomas argues that the evidence is insufficient to support his guilty

verdicts because no eyewitnesses identified him at any of the crimes, and

because, he says, the remaining evidence was speculative, establishing only his

mere presence. “While mere presence at the scene of a crime is not sufficient

evidence to convict one of being a party to a crime, criminal intent may be

inferred from presence, companionship, and conduct before, during and after the

offense.” Belsar v. State, 276 Ga. 261, 262 (1) (577 SE2d 569) (2003). See also

OCGA § 16-2-20 (party to a crime statute); OCGA § 24-14-6 (“To warrant a

conviction on circumstantial evidence, the proved facts shall not only be

consistent with the hypothesis of guilt, but shall exclude every other reasonable

hypothesis save that of the guilt of the accused.”).

Viewed in the light most favorable to the jury’s verdict, the evidence

presented by the State was sufficient to sustain his conviction and sentence for

felony murder and guilty verdicts for the aggravated assaults of Bandera.

8

Witnesses placed Thomas and Nixon together prior to the murder. Phone

records and witness testimony established that Thomas possessed and used

Rodriguez’s stolen cell phone on the day of the murder. Moreover, text

messages between Thomas’ and Rodriguez’s phones showed two people

discussing the potential robbery of the taxi driver. Finally, after telling his

girlfriend he had to leave Georgia, Thomas fled to Rhode Island where he was

later arrested for his participation in these crimes. Accordingly, the jury was

authorized to find Thomas guilty of the felony murder and aggravated assaults

of Bandera.

However, we find that the evidence was insufficient to support Thomas’

guilty verdicts for the armed robbery and aggravated assaults of B. W. Here,

although Thomas’ phone was used to place the delivery order, the evidence at

trial showed that Carter and Nixon would routinely use Thomas’ cell phone. In

fact, the evidence at trial showed that Carter placed the delivery order and had

Thomas’ phone when B. W. arrived at the abandoned residence. Further,

although B. W. provided a general description of her third attacker (tall, light

skinned, African-American man with low cut curly hair), she did not identify

Thomas either during the investigation or at trial. With no other evidence

9

linking Thomas to B. W.’s assault, the State’s evidence of his presence, much

less his participation as a party to the crimes, is tenuous at best. Consequently,

the evidence was insufficient to establish Thomas’ guilt beyond a reasonable

doubt regarding the armed robbery and aggravated assaults of B. W., his

conviction and sentence for the armed robbery must be reversed and his guilty

verdict for the aggravated assaults must be set aside.

Ineffective Assistance of Counsel

2. Both Appellants also contend that they received ineffective

assistance of trial counsel. Though Appellants raise different claims of

ineffective assistance, the Strickland2 standard of establishing both deficient

performance and prejudice applies. “In reviewing the trial court’s decision,

‘[w]e accept the trial court’s factual findings and credibility determinations

unless clearly erroneous, but we independently apply the legal principles to the

facts.’” (Citation and punctuation omitted.) Wright v. State, 291 Ga. 869, 870

(2) (734 SE2d 876) (2012). With these principles in mind, we address

Appellants’ claims.

(a) Thomas’ claims of ineffective assistance

2 Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). 10

Thomas alleges that his trial counsel was ineffective by failing to: (1)

request his trial be severed from his co-defendants; (2) adequately inform him

regarding his right to testify at trial; and (3) object, move to strike, or request a

mistrial regarding portions of the testimony of State’s witness Brandon Jones

which, he alleges, violated his right to confront the witnesses against him

pursuant to Bruton v. United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476)

(1968). Because Thomas has failed to meet his burden under Strickland, we

affirm his convictions and sentences relating to the Bandera murder.

(1) Request for severance

First, Thomas claims that his trial counsel was ineffective for failing to file

a motion to sever his trial from that of his co-defendants. To prove deficient

performance, one must show that his attorney “performed at trial in an

objectively unreasonable way considering all the circumstances and in the light

of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745

SE2d 637) (2013). “The failure to file a motion to sever does not require a

finding of ineffective assistance where the decision whether to seek severance

is a matter of trial tactics or strategy, and a decision amounting to reasonable

trial strategy does not constitute deficient performance.” (Citations and

11

punctuation omitted.) Jackson v. State, 281 Ga. 705, 707 (6) (642 SE2d 656)

(2007).

Here, trial counsel testified at the motion for new trial hearing that he

made a strategic decision not to file a motion to sever. Counsel was concerned

about the numerous prior statements made by both Nixon and Carter in which

they had implicated Thomas; however, counsel knew that, because of the

restrictions of Bruton, it would be harder for the State to admit these statements

at a joint trial. Therefore, in an effort to make the co-defendants’ statements less

likely to come into evidence against Thomas at trial, counsel elected not to file

a motion to sever. Indeed, the record shows that trial counsel’s strategic

decision proved fruitful as the State agreed to limit its questioning of certain

witnesses and provided cautionary instructions to the same so as to not elicit

these inculpatory co-defendant statements at trial. Accordingly, the record

supports the trial court’s finding that this was a reasonable strategic decision.

This claim is without merit.

(2) The right to testify

Thomas also claims his trial counsel was ineffective because he failed to

adequately instruct Thomas on his right to testify and further alleges that, when

12

he asked counsel regarding his rights, counsel engaged in fear tactics in order

to prevent Thomas from taking the stand. Although the trial court failed to

make any specific factual findings regarding this claim of ineffectiveness,

“remand is not mandated if we can determine from the record that the defendant

cannot establish ineffective assistance of counsel under the two-prong test set

forth in Strickland.” (Punctuation omitted.) McClendon v. State, 299 Ga. 611,

613-614 (2) (791 SE2d 69) (2016).

At the motion for new trial hearing, trial counsel testified that he spoke

with Thomas “every day” about “the good parts and the bad parts” of testifying.

Counsel also informed Thomas that the decision concerning whether to testify

was his to make. The motion for new trial court was entitled to believe

counsel’s testimony on this issue, see Warren v. State, 283 Ga. 42, 44 (6) (656

SE2d 803) (2008), and likely did as the court denied Thomas’ amended motion.

Moreover, the record shows that the trial court informed all three defendants of

their right against self-incrimination, emphasizing that while their attorneys can

provide advice as to whether they should take the stand or remain silent, the

final decision concerning whether to testify was theirs alone. Thomas informed

13

the trial court that he understood his rights and that he elected not to testify.

Accordingly, Thomas is not entitled to relief on this claim.

(3) Testimony of Brandon Jones

Thomas also claims that trial counsel was ineffective for failing to object,

move to strike, or request a mistrial regarding the testimony of jailhouse

informant Brandon Jones. According to Thomas, Jones’ testimony — which

referenced Nixon’s own inculpatory statements about crimes for which only

Thomas and Nixon were indicted — coupled with Jones’ use of the pronoun

“they” when describing Nixon’s statements effectively implicated Thomas as a

party to a crime, and, therefore violated his right to cross-examination under

Bruton. We disagree.

“Bruton excludes only the statement of a nontestifying co-defendant that

standing alone directly inculpates the defendant.” (Citation omitted.) McLean

v. State, 291 Ga. 873, 875 (3) (738 SE2d 267) (2012).3 Here, informant Jones

was instructed to limit his testimony to Nixon’s admissions regarding his own

actions in the crime spree. Jones told the jury about his conversations with

3 We also note that Bruton “does not apply to non-testimonial out-of-court statements made by such a [non-testifying] co-defendant.” (Emphasis in original.) Billings v. State, 293 Ga. 99, 103-104 (4) (745 SE2d 583) (2013). 14

Nixon wherein Nixon admitted his involvement in the crimes charged. Though

Jones used the pronoun “they” on a few occasions during his testimony, “they”

were never identified by Jones. Nor did Jones identify Thomas as a participant

in any of the crimes, instead focusing on Nixon’s own inculpatory admissions.

See id. at 875-876 (3) (holding that the defendant’s confrontation rights were

not violated at a joint trial where evidence introduced that a non-testifying co

defendant made a statement after the shooting that “they” had thrown a gun out

of the car because the statement did not directly implicate the defendant); Nelms

v. State, 285 Ga. 718, 720 (2) (b) (681 SE2d 141) (2009) (the admission of a

non-testifying co-defendant’s statement that “they” went almost to Louisiana did

not violate Bruton because that statement did not directly implicate the

defendant). Standing alone, the testimony falls outside of Bruton as Jones did

not directly implicate Thomas and, at most, his use of “they” “became

incriminating only when linked with other evidence introduced at trial.” Burns

v. State, 280 Ga. 24, 27 (3) (622 SE2d 352) (2005).

Therefore, any objection made by counsel to Jones’ use of the pronoun

“they” would have been meritless as the testimony did not directly implicate

15

Thomas in violation of Bruton. Consequently, this claim of ineffective

assistance is also without merit.

(b) Nixon’s claim of ineffective assistance

Nixon alleges that his trial counsel was ineffective for failing to call him

as a witness to rebut the testimony of jailhouse informants Brandon Jones and

Bryant Douglas. Specifically, Nixon alleges that, after Jones and Douglas

testified, he informed counsel that both informants had lied under oath and

requested to be called as a witness, but counsel refused. However, a review of

the record belies Nixon’s claim.

At the motion for new trial hearing, Nixon’s attorney testified that, prior

to trial, he spoke with Nixon about his right to testify and informed Nixon that

the final decision on whether to testify was his to make. As discussed in

Division 2 (a) (2), supra, the record shows that the trial court informed Nixon

and his co-defendants of their right against self-incrimination. Indeed, this

colloquy occurred after both jailhouse informants testified, and after the State

rested its case. Trial counsel confirmed at the motion for new trial hearing that

he spoke with Nixon about his right to testify again at this time. Then, prior to

the defense resting, the record shows that all three defendants were again

16

reminded of their right against self-incrimination. After stating that he

understood his rights, Nixon elected not to testify. Based on the foregoing, the

motion for new trial court did not err in denying this claim as Nixon has failed

to establish either prong of the Strickland test. Accordingly, this ineffectiveness

claim is without merit.

Sentencing of Nixon

3. While the evidence was sufficient to sustain Nixon’s convictions,

we do find error in his sentences. As discussed in footnote 1, supra, Nixon was

indicted for numerous felony counts including six separate counts of possession

of a firearm during the commission of a felony for possessing a firearm during

the rape, armed robbery and aggravated assault of B. W. (Counts 6, 7 and 8), the

armed robbery and aggravated assault of Rodriguez (Counts 13 and 14) and the

aggravated assault of Bandera (Count 21). The trial court sentenced Nixon to

life without parole for the malice murder conviction with three concurrent life

sentences for the rape and armed robbery of B. W. and the armed robbery of

Rodriguez. The trial court also sentenced Nixon to five years each on all six

weapons charges to run concurrent to one another, but consecutive to the rape

conviction. Though the trial court properly sentenced Nixon for the weapons

17

charges associated with Bandera’s aggravated assault, B. W.’s rape, and

Rodriguez’s armed robbery, the court erred when it sentenced Nixon for

possession of a firearm during the armed robbery and aggravated assault of B.

W. (Counts 6 and 8) and the aggravated assault of Rodriguez (Count 14).

Therefore, the sentences for these three counts must be vacated.

It is well settled that

[w]here multiple crimes are committed together during the course of one continuous crime spree, a defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree, as provided under OCGA § 16-11-106 (b) (1), and additionally once for firearm possession for every crime enumerated in subsections (b) (2) through (5).

Smith v. State, 297 Ga. 268, 269 (1) (b) (773 SE2d 269) (2015) (citing State v.

Marlowe, 277 Ga. 383, 386 (2) (c) (589 SE2d 69) (2003)). See also Gibbs v.

State, 295 Ga. 92, 96 (2) (757 SE2d 842) (2014). The rape, armed robbery and

aggravated assault of B. W. were all carried out against the same victim, using

the same handgun during one continuous criminal encounter. Therefore, the

trial court properly sentenced Nixon on the possession charge predicated on B.

W.’s rape as that crime was committed against the person of another, see OCGA

§ 16-11-106 (b) (1), but erred in sentencing Nixon on the weapons charges

18

predicated upon the armed robbery and aggravated assault of B. W. (Counts 6

and 8) as they do not meet any of the remaining categories in OCGA § 16-11

106 (b) (2)-(5).