Following a jury trial, Lisa Ann Lebis appeals her convictions of felony murder and other crimes related to the shooting death of Officer Sean Callahan. Lebis contends that the evidence was insufficient to support the verdict with regard to a number of counts against her and that trial counsel rendered ineffective assistance in the case. For the reasons set forth below, we affirm in part and reverse in part—affirming Lebis's convictions of two of the misdemeanor obstruction counts and all of the counts regarding possession of firearms and dangerous weapons; but reversing her conviction of felony murder and of the other two misdemeanor obstructions.
On June 19, 2013, Lebis was indicted for the felony murder of Officer Callahan predicated on the felony of possession, as a party to the crime, of a firearm by a convicted felon, two counts of disorderly conduct, second degree criminal damage to property, four counts of misdemeanor obstruction of a police officer, one count of felony obstruction of a police officer, one count of simple battery, one count of theft by receiving stolen property, two counts of possession of a dangerous weapon, and three counts of possession of a firearm by a convicted felon. Following a jury trial, Lebis was found guilty of felony murder, criminal trespass to property as a lesser included offense of criminal damage to property, all five counts of obstruction, simple battery, all counts of possession of a dangerous weapon, and all counts of possession of a firearm by a convicted felon. Lebis was acquitted of the remaining counts of the indictment. The trial court sentenced Lebis to life imprisonment for felony murder, 12 months for criminal trespass to run consecutively to felony murder, 12 months to serve for each of the four counts of misdemeanor obstruction consecutive to each other and to criminal trespass, five years for felony obstruction consecutive to the misdemeanor obstruction counts, five years for each possession of a dangerous weapon count to run consecutively to each other and the count of felony obstruction, and five years for each count of possession of a firearm by a convicted felon to run consecutively to each other and to the counts of possession of a dangerous weapon. The count of simple battery was merged with felony obstruction for purposes of sentencing. On March 4, 2014, Lebis filed a motion for new trial and amended it on January 12, 2016. On May 20, 2016, the trial court denied the motion for new trial. On June 6, 2016, Lebis timely filed a notice of appeal, and her case was assigned to the April 2017 term of this Court. The case was orally argued on August 14, 2017.
Viewed in the light most favorable to the verdict, the record shows that Lebis and her husband, Tremaine, had been staying in a rented motel room near their home for eight days, but they were asked to vacate the room after failure to pay. Lebis cursed at motel staff, who called 911 to report Lebis's unruly behavior. Shortly thereafter, Officer Waymondo Brown and Officer Callahan arrived to investigate. After talking to motel staff, they proceeded to Lebis's room, where they discovered Lebis and Tremaine moving items into the motel breezeway. Officer Brown asked them to stop what they were doing, and he discovered that the room that they had been staying in was severely soiled and damaged. After inspecting the motel room, Officer Brown walked out and gave a hand signal to Officer Callahan to indicate that they were going to place Lebis and Tremaine under arrest. Officer Brown did not see the fanny pack that Tremaine was wearing at that time, and neither officer knew that Tremaine was carrying a handgun in the fanny pack.
Officer Brown grabbed Tremaine's right arm and told Tremaine to put his left arm behind his back and keep it there. Lebis became irate, and started yelling very loudly at Officer Brown to leave Tremaine alone. Officer Brown testified that Lebis's screaming was "not assisting" with the execution of the arrest. Tremaine struggled, was ultimately tasered without full effect, and broke free and ran behind the motel. Officers Callahan and Brown pursued, with Officer Callahan in the lead. During the pursuit, Tremaine pulled his gun, a .357 caliber Glock, from the fanny pack and began shooting, fatally wounding Officer Callahan. Officer Brown returned fire, killing Tremaine. Officer Brown ran to Tremaine, kicked away his gun, and went to assist Officer Callahan, who had fallen over a retaining wall.
Officer Brown tried to move Officer Callahan, but was unable to do so. Instead, he began to administer CPR, which he continued to do for approximately two minutes. At that point, Lebis appeared at the top of the retaining wall and started yelling at Officer Brown, asking him if he killed her husband. At that moment, Officer Brown realized that he had not secured Tremaine's weapon, making him vulnerable. Officer Brown pointed his gun at Lebis with one hand while trying to maintain pressure on Officer Callahan's gunshot wound with the other. Officer Brown yelled at Lebis repeatedly until she showed him her hands so he could see that she was unarmed. Officer Brown then resumed CPR on Officer Callahan.
In response to an emergency alert sent by Officer Brown, Officer Alex Frazier next reported to the scene and found Lebis, who had come back from behind the building, standing next to the patrol cars parked in front of the motel. Officer Frazier pointed his firearm at Lebis and ordered her to show him her hands. At the time, she was talking on a cell phone, with one hand holding the cell phone and the other down by her pocket area. Lebis did not comply with Officer Frazier's commands. Instead, she began to move in his direction. Officer Frazier instructed Lebis to get on the ground, but she did not comply and kept advancing. Another officer, who had then arrived at the scene, approached Lebis from behind, took her to the ground, and restrained her. Later, Officer Joshua Waites arrived on the scene. By that time, Lebis was being held in the back of a patrol car. Officer Waites opened the door in an attempt to search Lebis for weapons, and she started kicking him wildly.
Numerous dangerous weapons and firearms were recovered from the scene. The weapon that Tremaine used to shoot Officer Callahan was a modified .357 caliber Glock handgun. The following guns and ammunition were removed from the motel room shared by Lebis and Tremaine: a shotgun, a modified 9mm handgun, 20 live rounds of .357 Winchester ammunition, 30 live rounds of 9mm ammunition, and 16 shotgun shells. The guns were found inside boxes and luggage, with some wrapped in clothing and several others in plain view. Additional weaponry taken from the motel room included harpoon-like rocket motors with attached razor tips, a homemade silencer, a razor blade, two knives, a laser scope, and a homemade bandolier for shotgun shells. When interviewed by police after Officer Callahan's shooting, Lebis admitted that she knew that Tremaine carried a gun in his fanny pack during his flight from police, but she denied knowledge of the other weapons in the motel room. She did admit that she knew the person from whom Tremaine purchased weapons.
With regard to the convictions Lebis does not challenge in this appeal, the evidence was sufficient to enable a jury to find her guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). As for the convictions Lebis does challenge, we consider each one in turn.
These counts include criminal damage to property, felony obstruction of a police officer, and simple battery.
Lebis's challenge to her convictions of all five possession counts and of felony murder are interrelated because the felony murder charge's predicate felony was her alleged possession of a firearm—the murder weapon—by a convicted felon. Lebis contends that there was insufficient evidence to support her convictions on Counts XII and XIII charging her with possession of dangerous weapons and on Counts XIV, XV, and XVI charging her with possession of firearms by a convicted felon, all concerning the various weapons and firearms recovered after the murder, which occurred when Tremaine fled from the motel room he and Lebis shared for eight days. She also argues that the evidence was insufficient to support her conviction, as a party to the crime, of felony murder predicated on joint and constructive possession of the weapon Tremaine pulled from his fanny pack at the time of the killing. We find that the evidence was sufficient to support Lebis's convictions of possessing the various weapons as charged in Counts XII, XIII, XIV, XV, and XVI of the indictment, but that the evidence was insufficient to support her conviction of felony murder as charged in Count I of the indictment.
Before turning back to the facts of this case, some background is appropriate. It is true that "[p]ossession of contraband may be joint or exclusive, and actual or constructive." In the Interest of D.H., 285 Ga. 51, 52 (1) (673 SE2d 191) (2009). Actual possession means knowing, direct physical control over something at a given time. Id. For constructive possession, the standard is also well-understood: if a person has both the "power and the intention at a given time to exercise dominion or control" over a thing, then the person is in constructive possession of that thing. State v. Lewis, 249 Ga. 565, 566 (292 SE2d 667) (1982); Jones v. State, 339 Ga. App. 95, 98 (1) (a) (791 SE2d 625) (2016); Holiman v. State, 313 Ga. App. 76, 78 (1) (720 SE2d 363) (2011) ("A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion and control over a thing is then in constructive possession of it.") (internal citation omitted); Murray v. State, 309 Ga. App. 828, 830 (711 SE2d 387) (2011) (applying same standard to possession of a weapon). Mere proximity to contraband, absent other evidence connecting a suspect with that contraband, is not enough to establish constructive possession. Mitchell v. State, 268 Ga. 592 (492 SE2d 204) (1997). If one person alone has actual or constructive possession of a thing, then the person is in sole possession of it. Lewis, 249 Ga. at 566. If two or more people share actual or constructive possession of a thing, then their possession is joint. Id.
Constructive possession can be proven—and very often is proven—by circumstantial evidence. See Holiman, 313 Ga. App. at 80. Of course, as with any charge based on purely circumstantial evidence, in order to support a conviction "the evidence must exclude every reasonable hypothesis, save that of constructive possession by the defendant." Id.; see also Smiley v. State, 300 Ga. 582, 586 (1) (797 SE2d) (2017) (citing OCGA § 24-14-6 (2013)). As we have noted, proximity to contraband is plainly not enough. Stacey v. State, 292 Ga. 838, 840 (1) (a) (741 SE2d 881) (2013). But as this Court has also held, consistent with OCGA § 24-14-6, "questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and . . . that finding will not be disturbed unless the verdict of guilty is unsupportable as a matter of law." Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998); see also Dixon v. State, 298 Ga. 200, 202 (1) (779 SE2d 290) (2015). In other words, "whether the evidence shows something more than mere presence or proximity, and whether it excludes every other reasonable hypothesis, are questions committed principally to the trier of fact, and we [should] not disturb the decisions of the trier of fact about these things unless they cannot be supported as a matter of law." Holiman, 313 Ga. App. at 80.
A. Giving appropriate deference to the factfinder's assessment of the weight and credibility of the evidence, the direct evidence shows that Lebis had been cohabitating with Tremaine in proximity with the five weapons that she was convicted of possessing. But the circumstantial evidence shows far more, and the jury's evaluation of the totality of the evidence should be respected.
The evidence introduced at trial plainly supports the inference that Lebis and her husband Tremaine were prepared to resist arrest with firearms and other dangerous weapons in the event that they were detected at the motel. The jury heard and saw evidence that the couple, along with their three dogs, occupied a small motel room for eight days prior to the crimes in order to evade the husband's arrest. Lebis gave a variety of unsupportable answers when asked why she and her husband had stayed in the tiny room rather than in their nearby home. Lebis was the one who procured money to pay for their stay at the motel. The room was registered in the name of Lebis's son, although he never stayed there. And Lebis herself was the only one who communicated with motel staff; in fact, staff were surprised to find her husband Tremaine in the room when they entered to check its condition. And Lebis stated that Tremaine told her that he was never going back to prison. The ready inference from these facts is that Lebis did not want anyone to know that her husband was at the motel because there was a warrant out for his arrest. See Whaley v. State, 337 Ga. App. 50, 55-56 (2) (785 SE2d 685) (2016) (relying on fact that two individuals had acted in concert on the night of the crime to support finding of constructive possession).
The evidence presented regarding the state of the room shared by Lebis and her husband further supports the jury's finding of constructive possession. The pair's belongings were intermixed in the room and outside of the room; Lebis herself repeatedly explained to investigators that she and her husband were in the process of getting "our stuff" out of the motel room when police came. Lebis's references to "our stuff" goes beyond admitting mere control of the premises, and the jury may well have taken her comments as an admission of control of the contraband itself. Cf. Holiman, 313 Ga. App. at 81 (because defendant referred to apartment as '"our house,'" a rational trier of fact might take this reference as an admission of his control of the premises" as well as a presumption of possession). Motel management also testified that Lebis stated that her life was in that room. In addition, the jury was shown multiple pictures of the weapons and bags inside the room. Those photographs show the small size of the room and the close proximity in which Lebis and her husband were living. That too supports the jury's conclusion that Lebis was guilty of constructive possession. See Stacey, 292 Ga. at 840 (2013) (recognizing rebuttable presumption of joint possession of contraband found in a bedroom between parties who live together in that same bedroom); see also Mantooth v. State, 335 Ga. App. 734, 736 (1) (a) (783 SE2d 133) (2016) (evidence that defendant was "more than merely present" in apartment where firearm was found supported finding of construction possession); Jones, 339 Ga. App. at 99 & n.17 (evidence that defendant had control over residence supported jury's finding of constructive possession).
The photographs also show that some of the weapons were contained in clear plastic boxes or otherwise highly visible. For example, there was testimony and photographic evidence that the barrel of a shotgun was visible and sticking out from one of the bags. An empty long gun case was pulled out from under the sole bed in the room. Some of the weapons were found on the top of the crate for the dogs that Lebis and her husband owned and kept with them in the small room. See Stacey, 292 Ga. at 840 (plain view of contraband supports finding of constructive possession); Whaley, 337 Ga. App. at 56 (presence of contraband in plain sight supported finding of joint possession, as did circumstantial evidence of equal access); Holiman, 313 Ga. at 81 (same).
Officers stated that nothing about any of the items in the room indicated that they were in the sole possession of a particular person. Moreover, in spite of the small size of the room, the fact that the couple's belongings were intermixed, and the fact that many of the weapons were in plain sight in the room, Lebis (rather implausibly) denied that she was aware that they were there. Lebis eventually confessed that she knew about at least one weapon, and the jury watched a video recording of her explaining to an investigator that her husband carried a gun inside his fanny pack that he had modified because he was in the military and "he did all kinds of stuff like that." She was able to draw a picture of the gun when asked and she described the scope and the "little packs for extra ammo." The shifting narrative from Lebis regarding her knowledge of the items in the room, as well as her reasons for living there instead of in her own home could also support an inference by the jury that she exercised dominion over the weapons. Cf. Maddox v. State, 322 Ga. App. 811, 814 (1) (746 SE2d 280) (2013) (giving false name to officers among the factors supporting constructive possession finding). Indeed, the jury heard that Lebis knew her husband owned guns, knew who he bought them from and where he bought them, and that she had previously attempted to conceal the presence of firearms in the home she shared with her husband after he shot himself in the hand with a gun he illegally owned. That evidence too supports the jury's verdict on constructive possession. See Stacey, 292 Ga. at 840 (defendant's admission that he was aware of roommate's drug sales supported constructive possession finding).
Significant evidence, therefore, connects Lebis to the weapons in the motel room. The State was not required to show that Lebis solely or actually possessed the weapons at any point. Nor was it required to offer direct evidence that she possessed them. Instead, the State had to put forward enough evidence so that a properly-instructed jury could reasonably conclude that Lebis at least jointly and constructively possessed the weapons in her motel room. The State did just that. As in Holiman, the circumstantial evidence in this case shows a connection between Lebis and the weapons in her motel room "beyond mere presence and spatial proximity, or at least a rational trier of fact could find that it does." 313 Ga. App. at 83 (emphasis added). Accordingly, we find that there was sufficient evidence to support the jury's verdict on the constructive possession charges in this case, and we affirm her convictions of these crimes.
B. A more difficult question arises when we consider Lebis's argument that the evidence was insufficient as a matter of law in relation to her conviction of felony murder as charged in the indictment. Specifically, the indictment charged that Lebis, as a party to the crime, caused the death of Officer Callahan "while" she "did jointly possess a Glock .357 handgun" with her husband Tremaine when he shot Officer Callahan. Again, the .357 Glock was the weapon that Tremaine had placed in his fanny pack at some point, and that he later used to shoot and kill Officer Callahan. In keeping with the indictment, the felony murder count against Lebis requires proof that she jointly possessed the murder weapon at the time of the murder. The State did not prove what it charged.
As detailed above, possession may be actual or constructive, sole or joint. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. See In the Interest of D.H., 285 Ga. at 52. Constructive possession, on the other hand, requires that a person who does not have physical control of a thing does have both the "power and the intention at a given time to exercise dominion or control" over it. Lewis, 249 Ga. at 566; Jones, 339 Ga. App. at 98 (1) (a). If two or more people share possession of a thing, then their possession is joint, but if, as here, one person alone has actual possession of a thing, then the person is in sole possession of it. See Lewis, 249 Ga. at 566.
Although the determination of whether a person constructively possessed a thing is committed principally to the trier of fact, that determination cannot stand if unsupported as a matter of law. See Robbins, 269 Ga. at 501 (1); see also Dixon, 298 Ga. at 202 (1). The jury's verdict on the felony murder count, which necessarily required a finding that Lebis jointly possessed the murder weapon with Tremaine at the time of the killing, cannot be supported.
"[A]t [the] given time" that Tremaine shot Officer Callahan, the evidence shows that Tremaine, not Lebis, had actual and sole possession of the .357 caliber Glock that he pulled from the fanny pack he wore. See, e.g., Murrell v. State, 200 Ga. App. 231, 232 (1) (407 SE2d 460) (evidence insufficient to show defendant possessed contraband located in his sister's purse). Tremaine had left the motel room, and there is no evidence that Lebis had the intention or ability to exercise control over the weapon at that point. Under these circumstances, Lebis did not jointly and constructively possess that firearm at the time of the murder.
It is true that the Court of Appeals has held that because the act of one conspirator is the act of all co-conspirators, a defendant may constructively possess a firearm at the time that a co-conspirator alone actually possessed and used it in the execution or furtherance of the conspiracy. See Davis v. State, 287 Ga. App. 783, (1) (653 SE2d 107) (2007) (citing Moses v. State, 265 Ga. App. 203, 213 (6) (c) (593 SE2d 372) (2004)). And this Court has held likewise. See Aikens v. State, 297 Ga. 229, 230 (1) (773 SE2d 229) (2015). But we read those cases as ones that should have instead determined that a defendant can be held responsible for the actions of another as a party to the crime or as a co-conspirator, without also concluding that the defendant constructively possessed the contraband actually and solely possessed by another. As we explained in Lewis, possession may be sole or joint. See Lewis, 249 Ga. at 566. And "[i]f one person alone has actual or constructive possession of a thing, possession is sole." Id. (emphasis added). The corollary is that where one person alone has actual possession of a thing, no other person may also have actual or constructive possession of the thing. That is not to say that actual possession and joint possession cannot coexist; as Lewis also recognizes, they plainly can. Id. But to the extent cases have found that a defendant is in constructive, and thus joint, possession of contraband possessed by another person alone, they are disapproved.
That understanding renders Lebis's felony murder conviction improper. Although the indictment charged Lebis with felony murder as a party to the crime, it specified that the predicate felony was Lebis's joint possession of the murder weapon at the time Tremaine used it to shoot Officer Callahan. But Lebis's prior constructive possession of the Glock when it was kept with the other weapons in the motel room does not bear on whether she possessed it at the time of the murder as charged in the indictment. The indictment required the State to prove beyond a reasonable doubt that Lebis jointly possessed the murder weapon at the time of the murder; the evidence does not support her joint possession of the Glock at that time. Because the evidence was insufficient to support the charge of felony murder as set forth in the indictment, Lebis's conviction for this crime must be reversed.
Lebis was found guilty of four misdemeanor counts of obstructing a police officer, and she challenges the sufficiency of the evidence supporting each of them. "A person commits the offense of obstruction of an officer when he knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties. Flight after a lawful command to halt constitutes obstruction of an officer." (internal footnote omitted.) Cofield v. State, 304 Ga. App. 165, 168 (3) (695 SE2d 696) (2010) (citing OCGA § 16-10-24 (a)). As to two of the misdemeanor obstruction convictions that Lebis challenges—her alleged obstruction of Officers Brown and Callahan in their attempt to arrest Tremaine, as charged in Counts V and VI of the indictment—we agree that the evidence was insufficient to support those convictions; as to the other two misdemeanor obstruction convictions that she challenges—her alleged obstruction of Officer Brown in his attempt to perform life-saving efforts on Officer Callahan, as charged in Count VII of the indictment, and her alleged obstruction of Officer Frazier by refusing to comply with his lawful commands during the incident, as charged in Count VIII of the indictment—we disagree with Lebis and find that the evidence was sufficient to support those convictions.
A. At trial, Officer Brown testified that Lebis repeatedly yelled, "Leave him alone," when he and Officer Callahan were attempting to handcuff Tremaine. When asked about the effect of Lebis's screaming, Officer Brown testified that it was "not assisting" with the arrest of Tremaine. He did not testify, however, and the evidence did not show, that Lebis intentionally hindered the arrest by her protestations. And there was no evidence that Lebis refused or failed to comply with any directives from either officer at this time.
Under certain circumstances, words alone can constitute obstruction. See Stryker v. State, 297 Ga. App. 493 (677 SE2d 680) (2009). This case, however, is different than those in which our courts have found obstruction based solely on words or remonstrations. Misdemeanor obstruction convictions based on a defendant's words have survived appellate review where defendants' words affirmatively interfered with the officers' actions. Harris v. State, 314 Ga. App. 816, 820-821 (1) (726 SE2d 455) (2012). In those cases, the defendant: instructed someone to remove evidence from a crime scene; refused to leave a scene and yelled so loudly so as to interfere with an officer's ability to conduct a witness interview; deliberately misled an officer about the defendant's identity; lied to officers about the whereabouts of suspects; and deliberately misled a responding officer about the defendant's role in a car wreck. See id. (gathering cases).
The fact that Lebis was "not assisting" with the arrest in this case when she yelled at officers to leave Tremaine alone, without anything more, did not rise to the level of obstruction, and so her convictions for obstruction under Counts V and VI of the indictment must be reversed.
B. Lebis next contends that the evidence was insufficient to support her obstruction conviction for "hinder[ing Officer] Brown . . . by diverting [his] attention from performing life saving efforts on wounded Officer Sean Callahan." For this count of obstruction, the evidence does indicate that Lebis failed to immediately comply with Officer Brown's directive to show him her hands so that he could determine that she was not carrying a weapon. Accordingly, there was evidence supporting the jury's finding that Lebis committed obstruction when she failed to comply with an officer's lawful command and hindered him in the performance of his duties. We affirm that conviction.
This charge is set forth in Count VII of the indictment.
C. Lebis also maintains that the evidence was insufficient to support her conviction for "obstruct[ing Officer] Alex Frazier . . . by refusing to comply with his commands to stop moving and get on the ground, while officers were investigating a police involved shooting." Here, the record shows that, despite Officer Frazier's repeated requests to put away her cell phone, stop walking toward him, and show him her hands, Lebis deliberately and intentionally disobeyed his lawful requests. In fact, there is evidence that Lebis actively approached Officer Frazier to the extent that the other officer was required to take Lebis to the ground. The evidence was sufficient to support this count of obstruction, and we affirm it as well.
This charge is set forth in Count VIII of the indictment. --------
Lebis contends that trial counsel rendered ineffective assistance by failing to (a) request that opening and closing arguments be transcribed and (b) procure an expert to testify that the short time that Lebis distracted Officer Brown from providing life-saving procedures to Officer Callahan did not contribute to his death. We disagree.
To prevail on an ineffective assistance of counsel claim, the defendant must satisfy the familiar standard set out in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). Under the Strickland standard, a defendant must prove both that the performance of his lawyer was deficient and that he was prejudiced by the deficient performance. Mims v. State, 299 Ga. 578, 579-580 (1) (787 SE2d 237) (2016). If an appellant fails to satisfy either prong of the Strickland test, the other prong need not be examined, and 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.' [Cit.]" Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012) (quoting Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003)).
First, Lebis fails to make an adequate showing as to why trial counsel's decision not to request that opening statements and closing arguments be transcribed may have harmed her. As such, she has made no showing of prejudice at all, and this claim of ineffective assistance necessarily fails. Id.
Lebis next contends that trial counsel rendered ineffective assistance by failing to procure an expert to testify that Lebis's obstruction of Officer Brown as he attempted to provide life-saving procedures to Officer Callahan did not contribute to Officer Callahan's death. As this contention could only possibly have relevance to Lebis's conviction for felony murder, which this opinion now reverses, we need not address it.
Because we have reversed Lebis's convictions of felony murder and of two misdemeanor obstruction counts, and affirmed the other convictions, we remand this case to the trial court for resentencing.
Judgment affirmed in part and reversed in part, and case remanded for resentencing. All the Justices concur, except Melton, P.J., who concurs fully in Divisions 1, 3, and 4 and in judgment only in Division 2.