In the Supreme Court of Georgia
Decided: June 1, 2021
S21A0152. ROGERS v. THE STATE.
WARREN, Justice.
Robert Rogers was convicted of felony murder in connection
with the shooting death of Richard Trantham, Jr. On appeal, Rogers
contends that the evidence was insufficient to support his conviction
and that the trial court committed plain error when it admitted
certain testimony from a State witness. Seeing no reversible error,
we affirm. 1
1Trantham was killed on March 26, 2016. After Rogers’s first trial ended in a mistrial, a Wayne County grand jury re-indicted him on June 5, 2017, charging him with malice murder, felony murder predicated on aggravated assault, aggravated assault with a deadly weapon, and conspiracy to commit aggravated assault. Rogers was tried from August 28 to September 1, 2017. The jury found him not guilty of malice murder, but guilty of the other three counts. The trial court sentenced Rogers to life in prison without parole for felony murder, and the remaining counts were merged for purposes of sentencing. Rogers filed a timely motion for new trial on September 28, 2017, and he amended it through new counsel on January 17, 2019. After a hearing, the trial court denied the motion, as amended, on August 9, 2019. Rogers
1. Viewed in the light most favorable to the verdict, the
evidence presented at trial shows the following. On March 26, 2016,
Trantham and two of his friends were inside his mobile home on Saw
Mill Road in Wayne County when Andy O’Quinn—an
acquaintance—showed up. After spending a few minutes in the
living room, O’Quinn asked Trantham to “walk out with him to get
a beer.” While the two were outside, the friends who were still inside
the trailer heard a gunshot, went to the back door, and saw
Trantham lying on the back porch. When emergency personnel
arrived at the residence, they found Trantham deceased, with a
“large hole” in the center of his chest. Some drug paraphernalia was
found in the pockets of Trantham’s shorts. An autopsy revealed that
Trantham died from a single, high-velocity gunshot wound to the
back, though the range from which the bullet was fired could not be
determined.
initially failed to appeal in a timely manner, but the trial court granted his motion for an out-of-time appeal, after which Rogers filed a timely notice of appeal. This case was docketed in this Court for the term beginning in December 2020 and submitted for a decision on the briefs.
2
The victim’s brother, David Trantham, testified that Trantham
had a drug problem and had “slipped back” into his drug habit before
his death. According to David, Trantham had “gone downhill quite
a bit” and had robbed Dana Fossett, a woman who had provided
Trantham with drugs. Trantham had told David that, as a result of
the robbery, “they had took a hit out on him, and he was pretty sure
something was going to happen.”
At trial, O’Quinn—who was indicted separately for Trantham’s
murder but obtained a plea offer—testified that, on the day of the
shooting, he was contacted by Rogers, whom he had not seen in 15
or 20 years. Rogers told O’Quinn that he wanted to “get together
and catch up,” so Rogers picked up O’Quinn at his home, and they
drove in the general direction of Trantham’s residence. Rogers
asked O’Quinn where Trantham lived, explaining that Trantham
“owed some money” and that Rogers “just wanted to watch him and
scare him.” The two men then stopped by Fossett’s house and
performed some landscaping work for her. While there, Rogers and
Fossett had a brief conversation, during which O’Quinn overheard
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Fossett talking about Trantham with Rogers. After the visit to
Fossett’s house, Rogers took O’Quinn home and said he would call
O’Quinn later.
Later that day, O’Quinn testified, he picked up Rogers at a local
store, and they drove in O’Quinn’s car toward Trantham’s home.
Rogers got out of the car on Saw Mill Road “between some houses
and a field”—ostensibly to “watch” and “scare” Trantham—while
O’Quinn continued to Trantham’s residence, where he spent some
time talking with Trantham and the others who were inside. At
some point, O’Quinn walked outside to get a beer and Trantham
followed him out. The two men then sat in O’Quinn’s car and had a
brief conversation. Trantham then exited the car and walked back
toward the mobile home, at which point O’Quinn backed out of the
driveway and drove home. O’Quinn testified that he did not hear a
gunshot. He also testified that he did not pick up Rogers because
Rogers had told him earlier that Rogers was going to walk back to
Rogers’s car, which was parked at the local store.
Rogers was arrested several days after the shooting and was
4
interviewed by a GBI Special Agent, Richard Dyal. During that
interview, an audio recording of which was played for the jury at
trial, Rogers initially denied being present at the crime scene, but
he eventually admitted to being involved in the killing. Specifically,
Agent Dyal expressed his belief that Rogers shot Trantham, and he
asked Rogers about his motivation. Rogers responded that he
wanted to “scare” Trantham because Trantham had stolen cash and
other items from Rogers’s house about three months earlier. To that
end, Rogers said, he went to Trantham’s residence, positioned
himself outside the mobile home with a scoped rifle, and waited for
Trantham to come out. When Trantham came out on the back porch,
Rogers aimed for the light on the porch, but shot “a little to the left”
and hit Trantham instead. Rogers then ran off and threw the rifle
in the woods. In addition to the interview, other evidence showed
that Rogers told the same story—that he shot at the porch light to
scare Trantham—to his mother and daughter.
Rogers testified in his own defense. He admitted that he went
to Trantham’s house with O’Quinn on the night of March 26 to
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“confront” Trantham about the theft of items from his house months
earlier. But Rogers denied that he fired a gun or that he even had a
gun in his possession, and he claimed that he did not know who fired
the shot that killed Trantham. Rogers also claimed that he lied to
the police about the shooting to protect himself and his family from
the unknown shooter.
2. Rogers first contends that the evidence presented at trial
was insufficient to support his conviction because, he says, it did not
exclude every reasonable hypothesis of innocence—particularly the
hypothesis that someone else shot Trantham. See 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.”). However, the principle set forth in OCGA
§ 24-14-6 on which Rogers relies “applies only where the State’s case
against the defendant was wholly circumstantial.” Jackson v. State,
310 Ga. 224, 228 (850 SE2d 131) (2020) (citation and punctuation
omitted). Here, the case against Rogers was not wholly
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circumstantial; the State presented at least some direct evidence of
Rogers’s guilt, namely, the recording of Rogers’s interview with
Agent Dyal, where Rogers admitted that he intentionally fired the
bullet that hit Trantham. See id. See also Eggleston v. State, 309
Ga. 888, 891 (848 SE2d 853) (2020) (testimony that defendant had
confessed to shooting the victim was “direct evidence of his guilt”).
And even though Rogers later testified at trial that he did not shoot
at all, the jury was authorized to reject Rogers’s trial testimony and
instead to credit some or all of the statements Rogers made during
his interview with Agent Dyal. See Martin v. State, 306 Ga. 538,
541 (832 SE2d 402) (2019) (“The jury, as the sole arbiter of witness
credibility, was entitled to discredit [defendant’s exculpatory]
testimony . . . .”); Donaldson v. State, 302 Ga. 671, 673 (808 SE2d
720) (2017) (“[I]t is the role of the jury to resolve conflicts in the
evidence and to determine the credibility of witnesses, and the
resolution of such conflicts adversely to the defendant does not
render the evidence insufficient.”) (citation and punctuation
omitted).
7
In challenging the sufficiency of the evidence, Rogers also
contends that the State failed to rebut the affirmative defense of
accident beyond a reasonable doubt. We disagree. As discussed
above, the State’s evidence showed that Rogers intentionally fired a
gun in Trantham’s direction, which rebuts any defense of accident.
See OCGA § 16-2-2 (“A person shall not be found guilty of any crime
committed by misfortune or accident where it satisfactorily appears
there was no criminal scheme or undertaking, intention, or criminal
negligence.”); Mills v. State, 287 Ga. 828, 832 (700 SE2d 544) (2010)
(“To succeed on an affirmative defense of accident, the defendant
must show that he acted without criminal intent, was not engaged
in a criminal scheme, and was not criminally negligent, that is, he
did not act in a manner showing an utter disregard for the safety of
others who might reasonably be expected to be injured thereby.”).2
2 Notably, even though the jury was charged on the defense of accident, we do not discern any evidence of accident in this case. Rogers’s trial testimony, if believed—that he was not involved in shooting Trantham— showed that he was innocent of the aggravated assault that formed the basis of his felony murder charge, whereas the State’s evidence—including Rogers’s statement to the police—showed that Rogers intentionally fired a gun in
8
We conclude that the evidence presented at trial was sufficient to
authorize a rational jury to find Rogers guilty of felony murder
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (99 SCt 2781, 61 LE2d 560) (1979).
3. Rogers contends that the trial court erred when it admitted
Agent Dyal’s testimony about the “real story” behind Rogers’s
motive in shooting Trantham. On redirect examination, the
prosecutor elicited the following testimony from Agent Dyal:
[PROSECUTOR:] Now, [defense counsel] made a big
point about you going back and forth, and confronting
[Rogers] on several occasions about the true story, the
real story, what you thought had happened and why he
was being not truthful with you about the break-in being
the reason he went out there. What was the real story
that you thought had happened?
[AGENT DYAL:] I thought that Mr. Trantham had
owed money to [Fossett] for drugs, had ripped or stolen
the money, that Mr. Rogers, being an associate, had been
sent out there to kill Mr. Trantham.
Trantham’s direction, which would authorize the jury to find him guilty of aggravated assault, among other crimes. This does not appear to leave any room for an accident defense; there was no evidence, for instance, that the gun discharged accidentally or that Rogers discharged the gun but somehow did so with no criminal intent or negligence. See OCGA § 16-2-2; Mills, 287 Ga. at 832.
9
Rogers argues that the trial court should have excluded this
testimony because, he claims, it clearly violated several provisions
of the Evidence Code.3
As Rogers concedes, however, he did not object at trial to the
testimony in question, so his claim can be reviewed only for plain
error. See Westbrook v. State, 308 Ga. 92, 101 (839 SE2d 620) (2020).
To succeed on a plain-error claim, the defendant must demonstrate
an error that was not “affirmatively waived,” that was “clear and not
open to reasonable dispute,” that “probably affected the outcome of
his trial,” and that “seriously affected the fairness, integrity or
public reputation of judicial proceedings.” Bozzie v. State, 302 Ga.
704, 707 (808 SE2d 671) (2017) (citation and punctuation omitted).
“The failure to meet one element of this test dooms a plain error
claim.” Denson v. State, 307 Ga. 545, 548 (837 SE2d 261) (2019).
3 Specifically, Rogers contends that Agent Dyal’s statement referred to facts outside his personal knowledge, in violation of OCGA § 24-6-602; invaded the province of the jury concerning witness credibility, in violation of OCGA § 24-6-620; and was improper layperson opinion testimony, in violation of OCGA § 24-7-701. As explained below, we need not decide whether any of these provisions were violated.
10
Here, even assuming (without deciding) that the trial court
erred in admitting Agent Dyal’s statement about Rogers’s motive,
Rogers has failed to show that this alleged error likely affected the
outcome of the trial. To begin, during the recorded interview with
Rogers (the admission of which he does not challenge), Agent Dyal
repeatedly expressed his belief that Rogers was lying when he said
that he just wanted to scare Trantham in retaliation for stealing
items from his house months earlier. Thus, the jury would not have
been surprised by Agent Dyal’s testimony that he believed Rogers
had some other motive for the shooting. See Thompson v. State, 304
Ga. 146, 153 (816 SE2d 646) (2018) (defendant failed to show harm
from detective’s testimony that she believed defendant was the
shooter, in part because the jury would not have been surprised to
know that the detective believed in defendant’s guilt). See also Pyatt
v. State, 298 Ga. 742, 755 (784 SE2d 759) (2016) (“[C]omments upon
the patently obvious generally pose little, if any, danger of
prejudice.”) (citation and punctuation omitted).
11
Moreover, evidence independent of Agent Dyal’s statement
showed that Rogers may have killed Trantham at Fossett’s behest.
Trantham’s brother testified that before the shooting, Trantham
said that he had robbed Fossett, who was his drug supplier, and that
“they had took a hit out on him” as a result of the robbery. Other
testimony showed that Rogers had a relationship with Fossett and
that on the day of the shooting, Rogers stopped by Fossett’s house
and had a conversation with her about Trantham. Because Agent
Dyal’s statement merely conveyed information that the jury could
have surmised from his interview with Rogers and from other
evidence, it is unlikely that this statement affected the jury’s verdict.
Rogers’s claim of plain error therefore fails. See Thompson, 304 Ga.
at 153. See also Mosley v. State, 298 Ga. 849, 852-853 (785 SE2d
297) (2016) (rejecting defendant’s plain-error claim because the
challenged testimony was cumulative of properly admitted
evidence); McKinney v. State, 307 Ga. 129, 135 (834 SE2d 741)
(2019) (same).
Judgment affirmed. All the Justices concur.
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