                                  WHOLE COURT

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                 November 18, 2016




In the Court of Appeals of Georgia
 A16A1103. DANIELS v. THE STATE.

      MCMILLIAN, Judge.

      Marquise Markel Daniels was convicted as a party to the crime of armed

robbery, aggravated assault, and possession of a firearm during the commission of a

felony in connection with the armed robbery of a convenience store. He appeals

following the denial of his motion for new trial, as amended, arguing in his sole

enumeration of error that the evidence was insufficient to sustain his convictions. As

more fully set forth below, we now affirm.

      Properly construed to support the jury’s verdict, Brown v. State, 291 Ga. 750,

752 (1) (733 SE2d 300) (2012), Quincy Driskell, Daniels’ alleged accomplice,

testified that on October 8, 2013, Daniels conceived a plan to rob Nick & Sonny’s

convenience store, which Daniels believed would be the “easiest target” because he
was a “regular” customer in the store and knew the person that worked there. Driskell

said the plan was for Daniels to buy a “single” cigarette, and when the clerk opened

the cash register, Driskell would draw a gun on the clerk and reach in and grab money

out of the register.1

       Driskell testified that they first went to Daniels’ mother’s house, which was

near the store, and then they walked to the store from there. He said as they walked

to the store Daniels handed him a mask and a gun to use during the robbery. As seen

from the store surveillance video, which was played for the jury at trial, Daniels

entered the store first and then Driskell walked in almost immediately behind him,

positioning himself near the open side of the counter where the cash register was

located while Daniels walked around to the front of the counter. The store clerk, who

was standing in the back of the store adjusting merchandise when Daniels and

Driskell entered, walked up the aisle past Driskell, who turned his face away from the

clerk. After the clerk walked behind the counter, Daniels held up one finger to

indicate he wanted one cigarette, and the clerk handed him a cigarette and picked up

       1
         Driskell testified that Daniels wanted Driskell to rob the store because
Driskell owed Daniels rent money, but Daniels, his wife, and his mother denied that
Driskell lived with Daniels. A forensic psychologist testified that Driskell had an IQ
of 71 and had been diagnosed as borderline intellectual functioning, and his aunt
testified that he was easily influenced and likely to do what others told him to do.

                                          2
his money off the counter. The clerk then moved back to the cash register and opened

it, at which point Driskell, who had placed a mask over his face, walked behind the

counter, displayed a gun, and reached toward the register. As shown on the video,

Daniels remained leaning on the counter watching from just a few feet away as

Driskell brandished the gun and reached his hand toward the register. Daniels then

held up his hands and ran out of the store, and Driskell finished grabbing the money

and ran out of the store about six seconds later. A witness who lived across from the

convenience store testified that he observed the men run out of the store, and that he

saw the first man run out and then another man run out behind him “[a]t the most” ten

seconds later, and that the men were running “one behind the other,” and in the same

direction.2

      According to Driskell, Daniels and he ran to the woods, where he gave Daniels

the money and Daniels covered the gun and mask with leaves and “stuff,”3 and then

      2
        When defense counsel attempted to elicit testimony on cross examination that
the second man was not “right behind” the first man, the witness responded, “[n]o,
it was right behind each other like – you know, like they came out at the same time
or nothing[sic].”
      3
        The gun and mask were never recovered. Driskell testified that he did not tell
police about leaving the gun and mask in the woods when he was arrested several
months after the crime. Daniels was not arrested until almost five months after the
crime, and the lead investigator testified he did not search Daniels’ home.

                                          3
they went together to Daniels’ mother’s house. Daniels went inside to ask his mother

to give him a ride home, and his mother testified at trial that he told her then that there

had been a robbery at the store. Daniels’ mother testified that she did not see Driskell

inside her house, but when she went outside to give Daniels a ride, Daniels and

Driskell were on the porch together and that Driskell, whom she knew from the

neighborhood, asked her if she would also give him a ride. Daniels’ mother testified

she dropped off both Driskell and her son at a stop sign located at Maple Heights,

where she said Daniels lived with his wife.

       Several days after the robbery, Daniels’ mother went to the police station and

viewed the surveillance video, explaining that she came forward because she heard

there was a reward and wanted to help out the convenience store clerk, who was her

friend. The mother identified Driskell as the robber but did not initially tell police that

her son was the other person in the video. However, when police began investigating

Driskell, they saw that Daniels and he were Facebook friends, and they called

Daniels’ mother and asked her to bring him in so they could talk to him. Police then

questioned Daniels, and that interview was admitted into evidence and played for the

jury at trial. For the entire first hour of the interview, Daniels steadfastly and

vehemently denied that he knew who robbed the store and that he knew anyone

                                            4
named Quincy Driskell. However, Daniels eventually admitted that he knew Driskell,

although he continued to deny any involvement in the robbery.

      Police stopped their interview with Daniels and questioned his mother again

about why she did not tell them that her son was the other person shown on the video.

During that second interview, the mother also told police for the first time that

Driskell had come to her house after the robbery and that she had given Driskell and

Daniels a ride to Maple Heights. Police then talked to Daniels again, and he admitted

that Driskell was at his mother’s house that night and that she gave them both a ride

and dropped them off together at Maple Heights. However, Daniels continued to

steadfastly deny to police that he had anything to do with the robbery.

      Daniels testified in his own defense at trial and admitted that he had known

Driskell since approximately 2012. He said he spoke to Driskell as he walked by him

on the way into the store, but maintained that he was not involved in the robbery and

said he had no idea Driskell was going to rob the store. He also testified he did not

know why Driskell went to his mother’s house after the robbery, except to opine that

maybe Driskell wanted to implicate them in the crime as retribution because Daniels’

mother had rebuffed Driskell’s romantic advances. When asked why he lied to police

for over an hour during his interview, he explained that he did not want to be a snitch

                                          5
and that he was scared, but he stated that he decided to tell the truth because he did

not want to get into trouble for something he did not do. Based on this and other

evidence presented at trial, the jury found Daniels guilty as a party to the crime of

armed robbery, aggravated assault, and possession of a firearm during the

commission of a felony.

      Daniels’ sole contention on appeal is that the accomplice’s testimony was not

sufficiently corroborated. It is true that under Georgia law, a felony conviction cannot

be based solely on the uncorroborated testimony of an accomplice. Cisneros v. State,

___ Ga. ___ (1) (b) (Case No. S16G0443, decided October 17, 2016); OCGA § 24-

14-8.4 But “sufficient corroborating evidence may be circumstantial, it may be slight,

and it need not of itself be sufficient to warrant a conviction of the crime charged. It

must, however, be independent of the accomplice testimony and must directly connect

the defendant with the crime, or lead to the inference that he is guilty.” (Punctuation

omitted; emphasis supplied.) Threatt v. State, 293 Ga. 549, 551 (1) (748 SE2d 400)

(2013). And “evidence of the defendant’s conduct before and after the crime may give

rise to an inference that he participated in the crime.” Cisneros, ___ Ga. at ___ (1)


      4
       This section replaced OCGA § 24-4-8 and has been given the same meaning.
Cisneros, ___ Ga. at ___ (1) (b).

                                           6
(b). See Stanbury v. State, 299 Ga. 125, 128 (786 SE2d 672) (2016); Mitchell v. State,

279 Ga. 158, 159-60 (1) (611 SE2d 15) (2005). Further, our law does not require

corroboration of every particular of an accomplice’s testimony or that the

corroborating evidence match the testimony of the accomplice in every detail. E.g.,

Threat, 293 Ga. at 552 (1); Mitchell, 279 Ga. at 159 (1).

      Here, Daniels and Driskell entered the store together; Daniels watched as

Driskell brandished a gun at the clerk and reached toward the cash drawer; a witness

observed the accomplice and Daniels come running out of the store within seconds

of each other and continue running in the same direction; they both ran to Daniels’

mother’s house where they caught a ride together; and they both exited Daniels’

mother’s car at the same location. In addition to the inference the jury was allowed

to draw from this evidence, the jury was further authorized to consider that Daniels

lied to police for over an hour about knowing Driskell and being able to identity the

robber, and even after admitting knowing it was Driskell who robbed the store, he

continued to withhold the fact that he had seen Driskell again after the crime. E.g.,

Threatt, 293 Ga. at 551 (1) (defendant’s “demonstrably false statements” to police

were corroborating).



                                          7
      It was for the jury to decide the credibility of the witnesses and whether the

accomplice’s testimony was sufficiently corroborated, and, as noted above, it was not

necessary that each particular of the accomplice’s testimony was corroborated or that

the jury determine that the corroborating evidence standing alone was sufficient to

convict Daniels. Cisneros, ___ Ga. at ___ (1) (b) (even modus operandi evidence

may, by itself, be sufficient to corroborate an accomplice’s testimony identifying

defendant as a participant in the crime); Rutledge v. State, 298 Ga. 37, 40 (1) (779

SE2d 275) (2015) (reiterating that slight evidence identifying accused as a participant

in the crime is all that is necessary). Our review shows that the evidence outlined

above and other evidence presented at trial was sufficient to authorize Daniels’

conviction as a party to the crimes charged. Accordingly, he is not entitled to reversal

on this basis.

      Judgment affirmed. Ellington, P. J., Dillard, Branch, Mercier and Peterson,

JJ., concur. Miller, P. J., Phipps, P. J., and McFadden, J., dissent.




                                           8
 A16A1103. DANIELS v. THE STATE.

      MILLER, Presiding Judge, dissenting.

      The right to a trial by jury is a hallmark of our criminal justice system in

America. For this reason, we are reluctant to interfere with a jury’s verdict except in

those limited circumstances in which the State has not proven the elements of the

offenses for which the defendant is charged. Here, Daniels was charged as a party to

a crime, and it is well-established under Georgia law that a defendant cannot be

convicted as a party to a crime based solely on the uncorroborated testimony of an

accomplice. Threatt v. The State, 293 Ga. 549, 551 (1) (748 SE2d 400) (2013). After

having thoroughly reviewed the record in this case, it is clear that the State has not

presented any independent evidence to corroborate the accomplice’s testimony that

Daniels orchestrated, assisted, or otherwise participated in the robbery. Mere presence

alone is not sufficient. Therefore, under the current status of the law, the question of

Daniels’s guilt should not have been submitted to the jury. Accordingly, I respectfully

dissent.
      A person may be charged as a party to the crime “only if he . . . [i]ntentionally

advises, encourages, hires, counsels, or procures another to commit the crime.”

OCGA § 16-2-20 (b) (4); see also Hunt v. State, 244 Ga. App. 578, 580 (536 SE2d

251) (2000). Moreover,

      [t]o sustain a conviction in a felony case upon the testimony of an
      accomplice, there must be corroborating facts or circumstances, which,
      in themselves and independently of the testimony of the accomplice,
      directly connect the defendant with the crime or lead to the inference
      that he is guilty.


(Footnote omitted; emphasis supplied.) Chandler v. State, 311 Ga. App. 86, 87 (1)

(714 SE2d 597) (2011). Although corroborating evidence “may be circumstantial and

it may be slight,” evidence that only corroborates the time line and details of the

crimes is not sufficient. Taylor v. State, 297 Ga. 132, 134 (2) (772 SE2d 630) (2015);

Shumake v. State, 159 Ga. App. 142 (1) (a) (282 SE2d 756) (1981).

      The evidence here showed that Daniels entered the convenience store to buy

one cigarette. About 10 seconds later, Driskell entered. While Daniels and the cashier

were talking at the register, Driskell pulled his mask over his face, pulled out a gun,

and pointed it at the cashier. Daniels put his hands in the air and ran from the store.

Driskell followed, about seven seconds later. Notably, an eyewitness who observed


                                          2
the men running down the street testified that they did not appear to be running

together. When police interviewed Daniels, they did not consider him to be a suspect,

and in fact did not consider him to be a suspect even after he made inconsistent

statements about knowing Driskell during the interview.

      Driskell’s testimony was the only evidence that Daniels planned the robbery,

provided the weapon and mask, or disposed of those items in the woods after the

robbery. At most, the independent evidence corroborates the chronology and details

of the crimes Driskell committed, but none of it shows Daniels’s participation as

opposed to his mere presence.1 Taylor, supra, 297 Ga. at 134 (2); see also Nix v. State,

133 Ga. App. 417, 419 (211 SE2d 26) (1974) (defendant’s actions corroborated

accomplice’s testimony as to chronology of events, but did not directly or indirectly

substantiate defendant’s guilt).

      Here, there is no independent corroborating evidence and therefore the issue

of Daniels’s guilt should not have been presented to a jury.2 Hill v. State, 236 Ga.


      1
       It is possible that Daniels’s conduct after the robbery would have supported
a conviction as an accomplice after the fact, but he was not charged with that crime.
      2
        The Supreme Court of Georgia’s recent decision in Cisneros v. State, __ Ga.
__ (Case No. S16G0443, decided October 17, 2016), does not require a different
conclusion. In Cisneros, independent evidence from the modus operandi of several
burglaries, as well as testimony from the others involved, corroborated the

                                           3
831, 833 (225 SE2d 281) (1976) (reversing convictions that were based on

accomplice’s testimony because “corroborating evidence must do more than merely

cast on the defendant a grave suspicion of guilt.”) (citations omitted); Gilmore v.

State, 315 Ga. App. 85, 91-92 (1) (d) (726 SE2d 584) (2012) (co-defendant’s

uncorroborated testimony that defendant was involved in home invasions was

insufficient to sustain conviction); Black v. State, 155 Ga. App. 798 (272 SE2d 762)

(1980) (reversing conviction where no evidence corroborated accomplice’s testimony

that defendant was involved in burglary). Instead, in this case, the trial court should

have granted Daniels’s motion for a directed verdict when it was clear at the close of

the State’s case that there was no independent corroborating evidence to establish that

Daniels was a party to the crimes.

      Accordingly, this Court should reverse Daniels’s convictions. I am authorized

to state that Presiding Judge Phipps and Judge McFadden join in this dissent.




accomplice’s testimony. Here there is no such independent corroborating evidence.

                                          4
