Kemp v. State
810 S.E.2d 515
Ga.2018Background
- On July 1, 2011, Derek Gray was lured to a purported drug transaction, shot multiple times, and later found dead; bullets recovered were .38 caliber. Defendants Derek Kemp, Harvey Hogans, and Alphonso Watkins were tried for malice murder and related offenses.
- Evidence tied Kemp’s burned Ford Taurus (with shots fired inside) to the crime; cell‑tower data placed Kemp and Watkins moving south after last calls with Gray. Watkins sent texts referencing sale of handguns and had a photo of a .45 similar to one Gray owned.
- Gang member Steve Lewis (an admitted informant earlier that year but no longer an active informant when he testified) related statements by Watkins describing a staged drug deal, Kemp and Hogans picking up Gray, and Hogans shooting Gray; Lewis also testified about post‑crime conduct (body disposal, car burning).
- At trial the jury convicted the defendants of malice murder and related counts (some counts later vacated or merged); defendants appealed raising sufficiency, hearsay/Confrontation and Sixth Amendment claims about Lewis, confrontation claim about a medical examiner, mistrial/credibility challenges, and preservation arguments.
- The Georgia Supreme Court reviewed sufficiency under Jackson v. Virginia, considered Lewis’s testimony in the record, and evaluated Massiah/Sixth Amendment, co‑conspirator hearsay (OCGA § 24‑8‑801(d)(2)(E)), mistrial discretion, Confrontation Clause for the medical examiner, and preservation of other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for murder, robbery, firearm offenses | State: evidence (cell data, car, burned Taurus, bullets, Lewis’s statements, post‑crime conduct) supports convictions | Kemp/Watkins: lacked proof of malice or direct participation; Watkins alleged merely present for a drug deal | Affirmed — evidence sufficient; malice can be formed instantly; conspiracy liability imputes co‑conspirator intent; post‑crime conduct supports guilt |
| Sixth Amendment/Massiah — was Lewis a government agent when Watkins spoke in jail? | State: Lewis was not an agent at time of incriminating statements; informant relationship terminated; police did not direct elicitation | Watkins/Hogans: Lewis acted as government agent and elicited statements after proceedings began, violating right to counsel | Denied — no Massiah violation: no agreement to exchange benefits nor deliberate police‑directed elicitation when statements made |
| Admissibility of Watkins’s out‑of‑court statements as co‑conspirator hearsay under OCGA § 24‑8‑801(d)(2)(E) | State: statements were made during course and in furtherance of a broader gang conspiracy; preponderance standard met | Kemp/Hogans: conspiracy ended with Gray’s death; statements were idle/narrative, not in furtherance | Denied — trial court reasonably found statements made in course and furtherance of criminal‑street‑gang conspiracy; liberal standard applies |
| Mistrial/credibility challenges based on inconsistent or prejudicial testimony by Lewis | State: inconsistencies go to credibility; cross‑examination and curative instruction adequate | Hogans: Lewis materially contradicted prior statements and referenced death threats, requiring mistrial | Denied — no showing of knowing use of perjured testimony; inconsistencies for cross‑exam; curative instruction sufficed for unsolicited death‑threat remark |
| Confrontation Clause challenge to testimony of medical examiner (Dr. Frist) | State: Dr. Frist performed autopsy and testified; he was subject to cross‑examination | Watkins: Dr. Frist did not perform the original physical exam or write report; testimony was not based on personal knowledge and violated confrontation rights | Denied (plain‑error review) — Dr. Frist performed the autopsy (an examining physician), was cross‑examined, and Bullcoming does not require exclusion here |
| Preservation of additional claims for habeas or cell‑tower suppression | Defendants attempted to "preserve" issues for later habeas or law changes | Defendants: adopt prior trial arguments; seek reservation for future relief | Rejected — arguments inadequately briefed/preserved under Court’s Rule 22; nothing to review |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (sufficiency of the evidence standard)
- McDaniel v. Brown, 558 U.S. 120 (reviewing court considers all evidence admitted at trial)
- Massiah v. United States, 377 U.S. 201 (Sixth Amendment right to counsel and government agent elicitation rule)
- Bullcoming v. New Mexico, 564 U.S. 647 (surrogate testimony and Confrontation Clause context)
- Crawford v. Washington, 541 U.S. 36 (testimonial hearsay and Confrontation Clause)
- Almendarez‑Torres v. United States, 523 U.S. 224 (sentencing/re‑cividist issue precedent relied on)
- Wilkins v. State, 302 Ga. 156 (Georgia discussion of co‑conspirator statements and Evidence Code analysis)