BAILEY v. The STATE.
-- May 29, 2012
Deigo Bailey appeals his convictions for malice murder, conspiracy to commit armed robbery, and possession of a firearm during the commission of a crime in connection with the fatal shootings of Jerry Bell and Wilbert Deroulot. He challenges the sufficiency of the evidence and the admission into evidence of certain testimony. Finding the challenges to be without merit, we affirm.1
The evidence at trial, construed in favor of the verdicts, showed the following. Bell and Deroulot sold drugs and held “strip parties” at a rented house in Cobb County. Bailey and his co-indictees Ford, Stokes, and Moore conspired to rob them. Bailey's brother, who was dating Stokes at the time, was in prison for murder, and Bailey and Stokes wanted to raise money to hire a lawyer for him. Over the course of a month, the two developed a plan in which Stokes and another woman would distract Bell and Deroulot inside the house and text Bailey when the moment was right for the robbery.
On the night of April 4, 2009, the four co-indictees met at Stokes's home. Ford brought a handgun and an assault rifle to the house. Bailey picked up the rifle as they left to go to the victims' house. The four took two vehicles, with Stokes taking Moore in her car and Bailey driving his girlfriend's black Honda with Ford as a passenger. The black Honda had a distinctively loud muffler. Upon arrival, Bailey and Ford waited outside while Moore and Stokes entered the house. Stokes texted Bailey, updating him on the situation inside. Sometime after 3:00 a.m., Bailey and Ford walked up to the house and hid behind a green vehicle parked in the backyard. Not long after, Bell and Deroulot walked out onto their back deck. Bailey and Ford opened fire, with Ford wielding the rifle and Bailey using the handgun. Deroulot was shot nine times and Bell was shot six times, and both died from their wounds. Spent bullet casings matching the two guns were found in the backyard.
Neighbors heard the gunfire and called the police. Bailey and Ford fled the scene in the Honda. Neighbors saw a dark-colored vehicle leave the scene and noted its distinct muffler sound. A responding officer passed a vehicle meeting the neighbors' descriptions, but lost the car before it could be stopped. Ford tossed the rifle out of the car's window. Stokes and Moore also fled the scene, driving to the home of Bailey's cousin, Tameka Cook where Stokes told Cook that Bailey and Ford had killed the two victims. Stokes and Moore then met with Bailey and Ford, and Ford complained that the entire operation had been a waste of time inasmuch as they had come away without drugs or money. Stokes asked Bailey why they had opened fire and he told her it was because the victims came outside. Bailey later told a friend that he had fired the handgun, but did not know if he hit anyone.
All three co-indictees testified for the State at Bailey's trial.
1. Bailey contends that the evidence was insufficient to support his convictions because it showed that he renounced and abandoned the conspiracy to commit armed robbery and that Ford fatally shot both of the victims.
Certainly, an initial coconspirator can avoid the effects of the crime of conspiracy to commit a crime2 if that person withdraws from the agreement to commit a crime prior to an overt act in furtherance of the crime.3 Furthermore, it is an affirmative defense to a charge of criminal attempt to commit a crime4 when the individual abandons his “effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.”5 But, the evidence, as outlined above, shows that this was far from Bailey's situation. Bailey is relying upon his version of events, which is contradicted by, inter alia, the physical evidence at trial, which included but was not limited to, the facts that shell casings from two guns were found at the murder scene and in positions indicating that there were two weapons fired by different individuals. Even assuming arguendo that the circumstances offered by Bailey demonstrate his complete renunciation of the plan to rob the victims and that he did not fire at them, the jury was free to reject a version of events favorable to him.6 Hall v. State, 287 Ga. 755, 756(1), 699 S.E.2d 321 (2010).
The evidence was sufficient to enable a rational trier of fact to find Bailey guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Bailey also contends that the trial court erred in permitting into evidence three instances of what he characterizes as “inaccurate and prejudicial hearsay testimony that [he] was involved in the two murders.”7 However, these complaints are not properly reviewed on appeal because Bailey did not make any contemporaneous objection to the cited testimony, on the basis of hearsay or otherwise. Jeffers v. State, 290 Ga. 311, 314(4)(a), 721 S.E.2d 86 (2012). Even so, the crux of the testimony is Stokes's inculpation of Bailey, and as such statements were made to Cook shortly after the murders but before the criminal enterprise was at an end, Stokes's declarations were admissible into evidence against Bailey. OCGA § 24–3–5.8
All the Justices concur.