Cushenberry v. State
300 Ga. 190
| Ga. | 2016Background
- On May 11, 2010, Cushenberry and three co-defendants (Finley, Jordan, Taylor) arranged to meet Javarus Dupree under the pretense of buying marijuana; Dupree was shot and later died.
- Evidence showed Cushenberry communicated with co-defendants that day, had guns, expressed intent to "hit some licks," and later admitted the group planned the robbery; phone records and a cell phone tied to Taylor linked participants to the scene.
- State introduced gang-related evidence (tattoos, MySpace photos, red clothing, witness statements, and expert testimony) to show motive and association; some materials were disclosed to defense less than ten days before trial.
- Trial counsel moved to exclude the late-disclosed gang evidence and for a continuance; the court denied exclusion and continuance but allowed defense to interview the State's gang expert; counsel cross-examined the expert when he later testified.
- Cushenberry was convicted of felony murder (life without parole) and conspiracy to commit armed robbery; he appealed claiming insufficiency of evidence, discovery violations/prosecutorial misconduct, erroneous admission of gang and MySpace evidence, and ineffective assistance of counsel.
Issues
| Issue | Cushenberry's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict as a party under OCGA § 16-2-20 | He was merely present and did not aid/abet the robbery or shooting | Evidence of his statements, conduct, presence before/after, guns, phone contact, and admission supported party liability | Affirmed — evidence sufficient for jury to find him a party to the crimes (Jackson standard) |
| Late disclosure of gang evidence under OCGA § 17-16-4; remedy of exclusion | Late discovery denied reasonable preparation and warranted exclusion | State acted promptly as it received new materials; trial court could craft lesser remedies; no bad faith or prejudice shown | Affirmed — trial court did not abuse discretion in refusing exclusion; exclusion too severe absent bad faith and prejudice |
| Denial of continuance after late disclosure | Counsel needed time to prepare; continuance required | Court offered interview with gang expert and evidence did not surprise or change defense theory | Affirmed — denial of continuance was within discretion; remedy to interview expert adequate |
| Ineffective assistance for pretrial preparation and failing to object to prosecutor comments | Counsel unprepared for late gang evidence, should have filed written motions and called witnesses; failed to object to improper closing remarks | Counsel moved orally, cross-examined expert, made tactical choice not to object to prosecutor's remarks; no prejudice shown | Affirmed — Strickland not satisfied (no demonstrated prejudice; decisions were not patently unreasonable) |
Key Cases Cited
- Flournoy v. State, 294 Ga. 741 (2014) (party liability may be inferred from presence, companionship, conduct)
- Butts v. State, 297 Ga. 766 (2015) (participants in robbery responsible for probable consequences)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence)
- Ellis v. State, 292 Ga. 276 (2013) (application of party liability principles)
- Vega v. State, 285 Ga. 32 (2009) (credibility and jury’s role resolving conflicts)
- Chance v. State, 291 Ga. 241 (2012) (remedies for discovery violations; exclusion requires bad faith and prejudice)
- Cockrell v. State, 281 Ga. 536 (2007) (consideration of prosecutor’s good faith in discovery timing)
- Norris v. State, 289 Ga. 154 (2011) (denial of continuance upheld where late evidence was not a surprise)
- Leger v. State, 291 Ga. 584 (2012) (interviewing witness can be an adequate remedy for late disclosure)
- Bulloch v. State, 293 Ga. 179 (2013) (harmless-error analysis given strong case against defendant)
- Manriquez v. State, 285 Ga. 880 (2009) (defendant must present testimony of uncalled witness to prove prejudice)
- Smith v. State, 298 Ga. 491 (2016) (Strickland framework and related ineffective-assistance precedents)
- Davis v. State, 299 Ga. 180 (2016) (requirements to show what additional counsel could have argued)
- Domingues v. State, 277 Ga. 373 (2003) (prejudice requirement for uncalled witnesses)
- Williams v. State, 328 Ga. App. 876 (2014) (prosecutorial misconduct requires actual misconduct and demonstrable prejudice)