STEPHENS v. THE STATE (Two Cases), 307 Ga. 731

Background

Oct. 25, 2002: Eric Kemp (the “beeper man”) was shot and beaten at his repair shop; wounds consistent with an AK-47/SKS-type rifle and casings from a .40-caliber handgun were recovered.
Witnesses saw a group exit a blue vehicle and approach Kemp’s shop; eyewitnesses placed Stephens, Brewer, and McDowell among them; some witnesses saw firearms.
Stephens and McDowell were arrested four days later in a stolen car containing cocaine and a .40-caliber handgun; ballistics linked the .40 shell from the scene to that gun.
Brewing witness statements and admissions implicated the defendants (Brewer admitted involvement to Gayle Glass; Chatman later implicated Stephens). The case was reopened in 2010 and led to arrests.
Joint jury trial (April 2013) resulted in convictions for malice murder; both defendants received life sentences (later resentenced to life with parole eligibility); appeals were consolidated and the convictions affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor referenced non-testifying witness Vanessa Thrasher in closing; court failed to rebuke or give curative instruction under OCGA § 17-8-75	Stephens: statement introduced prejudicial matter not in evidence and court should have sua sponte rebuked or given curative instruction	State: comment was cumulative/inferential and trial court sustained objection; no further action required	Court: No duty to give curative instruction absent request; any error harmless because remark was cumulative of witness testimony.
Prosecutor commented on Brewer’s mother (present in courtroom) as an impeachment witness not called	Stephens: comment introduced facts not in evidence and shifted burden	State: comment was argument about evidence and credibility; not new evidence	Court: Issue not preserved by Stephens (no adoption of co-defendant’s objection); therefore review denied.
Ineffective assistance for trial counsel’s failure to object to prosecutor’s credibility comments about Ector, Glass, Cooper, Chatman	Stephens: counsel deficient for not objecting to prosecutor expressing belief in witnesses’ credibility	State: prosecutor argued reasonable inferences from evidence; counsel chose strategic non-objection	Court: No deficient performance—comments were permissible inferences, not personal belief; Strickland claim fails.
Motion for mistrial based on prosecutor arguing there were other uncalled witnesses/"rumor and scuttlebutt"	Stephens: prosecutor introduced facts not in evidence warranting mistrial	State: prosecutor was explaining why rumor was inadmissible and arguing inferences	Court: prosecutor’s remarks were within legitimate closing latitude and context; denial of mistrial affirmed.
Brewer’s offer to stipulate to prior felony was refused; trial court admitted certified prior-conviction record	Brewer: under Old Chief, stipulation should be accepted when purpose is only to prove prior-conviction element	State: admission of certified conviction was within court’s discretion	Court: Applied Old Chief/Ross framework and Bentley; prior narcotics conviction was not unduly inflammatory in a murder case—denial of stipulation not an abuse of discretion.
Prosecutor’s mentions (Brewer’s mother; slide implying Cooper was influenced) and alleged failure to rebuke under OCGA § 17-8-75	Brewer: remarks introduced facts not in evidence; court should rebuke or grant mistrial	State: remarks either not new evidence or objections were not properly preserved; trial court offered cure	Court: First remark was not error; second was waived when Brewer’s counsel declined offered curative instruction—no reversible error.

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance)
Old Chief v. United States, 519 U.S. 172 (1997) (when a stipulation should be accepted to avoid undue prejudice from prior conviction evidence)
Ross v. State, 279 Ga. 365 (2005) (addressing stipulation to prior convictions in Georgia)
Bentley v. State, 307 Ga. 1 (2019) (adopting Old Chief analysis as controlling in Georgia)
Fleming v. State, 306 Ga. 240 (2019) (court not required to rebuke or give curative instruction absent request)
Menefee v. State, 301 Ga. 505 (2017) (prosecutor may argue reasonable inferences bearing on credibility)
Arrington v. State, 286 Ga. 335 (2009) (harmless error analysis for failure to rebuke prosecutor)
Rutledge v. State, 298 Ga. 37 (2015) (admission of evidence may be harmless where cumulative)
Malcolm v. State, 263 Ga. 369 (1993) (operation of law vacating felony-murder counts)