KEMP v. THE STATE (Three Cases)
303 Ga. 385
| Ga. | 2018Background
- On July 1, 2011, Derek Gray was lured to a purported drug deal and killed by multiple .38-caliber gunshots; his body was dumped and the perpetrators burned a Ford Taurus linked to Kemp.
- Kemp and Watkins (both affiliated with the LTG faction of Gangster Disciples) and Hogans (an associate) were indicted on malice murder, armed robbery, concealing a death, firearm possession, and gang-related counts; all were convicted (the gang counts were later acquitted by the jury and some felony counts vacated).
- Key evidence: cell‑tower movements tying Kemp and Watkins to the area; statements by Watkins to fellow gang member Steve Lewis (an informant who later was jailed with Watkins); Lewis’s testimony describing the fake drug‑deal robbery and events surrounding the shooting; physical evidence including bullets and the burned Taurus.
- Lewis had previously been a confidential informant but his informant relationship had ended before the jailhouse statements; police were informed of Lewis’s earlier conversations and later interviewed him after his arrest.
- Watkins challenged admission of Lewis’s statements as Massiah violations and as inadmissible hearsay; Hogans challenged Lewis’s credibility and sought mistrial based on inconsistencies and a stray comment about threats; Watkins challenged admission of autopsy testimony by Dr. Brian Frist under the Confrontation Clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for murder and related convictions | State: evidence (cell data, Lewis’s testimony, physical evidence, destruction of car) supports convictions and conspiracy liability | Kemp/Watkins: insufficient — no proof of intent to kill or direct participation | Court: Evidence sufficient; conspirator liability and foreseeable killing principles sustain convictions (Jackson review). |
| Sixth Amendment (Massiah) — Was Lewis a government agent when Watkins made jailhouse statements? | State: Lewis was not an agent at the time; informant relationship had ended and police did not direct elicitation | Watkins/Hogans: Lewis was effectively an agent and his elicited statements violate the right to counsel | Court: No Massiah violation — no agreement/benefit or police‑directed elicitation; statements admissible. |
| Admissibility under co‑conspirator rule (OCGA § 24‑8‑801(d)(2)(E)) | State: Watkins’s statements to Lewis were during and in furtherance of a broader gang conspiracy and thus admissible | Kemp/Hogans: Statements were not made during/in furtherance of a conspiracy (conspiracy ended with killing) | Court: Admissible — trial court reasonably found (preponderance) a continuing gang conspiracy; statements could foster cohesion or further conspiratorial interests. |
| Confrontation Clause / medical examiner testimony | State: Dr. Frist conducted the autopsy and testified; Watkins could cross‑examine | Watkins: Dr. Frist did not perform the physical exam or author the report; admitting his testimony violated Crawford/Bullcoming | Court: No error — Frist was an examining forensic pathologist who performed the autopsy and was cross‑examined; Bullcoming inapplicable. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Massiah v. United States, 377 U.S. 201 (Sixth Amendment right to counsel and government agent elicitation rule)
- Crawford v. Washington, 541 U.S. 36 (testimonial statements and Confrontation Clause framework)
- Bullcoming v. New Mexico, 564 U.S. 647 (surrogate testimony about test results and Confrontation Clause limits)
- Wynn v. State, 272 Ga. 861 (malice can be formed instantly; jury determines intent)
- Higuera‑Hernandez v. State, 289 Ga. 553 (application of Massiah analysis under Georgia law)