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Final Copy 287 Ga. 338 S10A0136. MANLEY v. THE STATE. S10A0137. ALLEN v. THE STATE.

Melton, Justice. Following a jury trial, co-defendants Steve Manley and Robert Allen appeal their convictions for the murder of Emmett Whatley.1 For the reasons set forth below, we reverse in Case No. S10A0136 and affirm in Case No. S10A0137. In an indictment filed on June 19, 2008, Manley and Allen were both indicted for malice murder, two counts of felony murder, two counts of aggravated assault, and the possession of a firearm during the commission of a felony. Following a jury trial held on October 6-10, 2008, both Manley and Allen were found guilty on all charges. Both defendants received a sentence of life imprisonment for malice murder and five consecutive years for possession of a firearm during the commission of a felony. The convictions for felony murder were vacated by operation of law, see Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993), and the convictions for aggravated assault were merged with the murder convictions for purposes of sentencing. Manley's motion for new trial, which was filed on November 10, 2008 and amended on April 29, 2009 and May 1, 2009, was denied on August 30, 2009. Allen's motion for new trial, which was filed on November 12, 2008 and amended on May 22, 2009, was also denied by the trial court on August 30, 2009. A notice of appeal was filed in both cases on September 1, 2009, and both cases were docketed in this Court on September 24, 2009 and orally argued on January 11, 2010. Due to the related nature of these cases, we have consolidated them for purposes of rendering this decision.
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1. In the light most favorable to the verdict, the record shows that, in or around January 2007, Alexandria Phillips became friends with Whatley and visited his home. A few weeks before Whatley was murdered, Phillips had conversations with Allen, Manley, and Cody Allen-Brown,2 another codefendant, about Whatley. She told Allen, Manley, and Allen-Brown that Whatley had a recording studio at his house and that Whatley kept cash in his home. At this point, Allen, Manley, and Allen-Brown planned to rob Whatley. On the night of February 8, 2007, Phillips saw Allen-Brown enter Allen's Lincoln Navigator SUV around midnight (Allen and Manley were already in the car), and Allen called her to get directions to Whatley's home. In a series of subsequent calls, Allen and Phillips discussed that: (1) Whatley was not home; (2) Whatley returned home with a woman; (3) Whatley and the woman left; and (4) Whatley had returned again by himself.3 Cell phone records prove that calls were made from Phillips' phone to the phones of Manley, Allen, and Whatley near the time of the murder. Other testimony showed that Whatley did have a
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Allen-Brown was also convicted for Whatley's murder.

At one point, the co-defendants asked Phillips to call Whatley in order to get him to come out of his house. At the time Phillips called, however, Whatley was not at home.
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date that night, and he returned his date to her mother's house around 2:00 a.m. Some time after 2:00 a.m., Whatley's neighbors heard a gunshot, and one neighbor witnessed three people running from the scene to an SUV parked down the street. The next morning, Whatley was found dead in his front yard from a gunshot wound to the chest. On February 9, 2007, Phillips met with the codefendants, and, during this meeting, Phillips received a text message from a friend that Whatley was dead. When Phillips asked the three co-defendants about this, Allen-Brown admitted to the shooting, though he said he did not mean to do it. Allen told Phillips to keep quiet about the crime, and Allen and Manley explained to her that they were going to make up a cover story that they were just trying to buy drugs from Whatley on the night in question. In March of 2007, an informant contacted police to tell them that Allen-Brown had recently admitted to him that he had shot someone. Later, during questioning by police, both Allen and Manley admitted that they went to Whatley's home to buy drugs on the night of the murder but fled when they heard gunshots. In his statement, Manley indicated that he saw a man lying on the ground after the gunshot. Both Manley and Allen implicated Allen-Brown as the shooter in their written statements.
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This evidence was sufficient to enable the jury to find Manley and Allen guilty of the crimes for which they were convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Both Allen and Manley maintain that the trial court erred by narrowly restricting their cross-examination of Phillips regarding the changes in her eligibility for parole resulting from the plea and sentencing deal she entered into with the State in return for her testimony and cooperation. Based on the facts of this case, we agree, but we nonetheless find the error to be harmless in this case. The record shows that, pursuant to her plea and sentencing agreement, Phillips pled guilty to aggravated assault and received a sentence of six years in prison for her role in the crimes against Whatley. This sentence, however, requires Phillips to serve two years in prison before being eligible for parole. See OCGA

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