Appellant Christopher Cushenberry challenges his convictions for felony murder and conspiracy to commit armed robbery in connection with the shooting death of Javarus Dupree. We affirm.
1. (a) Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On May 11, 2010, Appellant and co-indictees Henry Finley, James Jordan, and Brandon Taylor were together on and off throughout the day. During the times they separated, they stayed in nearly constant contact by phone. Appellant, who had spent all of his money partying the night before, told several people that he was planning to “goon[ ] out” and “hit some licks,” slang terms for committing a robbery. To that end, Appellant had guns, and he and his co-indictees were actively seeking someone to rob.
At some point during the day, Dupree was selected as the victim. Around 3:00 p.m., Appellant and Jordan contacted Dupree, ostensibly to purchase marijuana. Once Dupree agreed to meet, Appellant and his three co-indictees drove together in Jordan’s Cadillac to a gas station, where J or dan and Taylor left the vehicle and got into Dupree’s car. Appellant and Finley then drove the Cadillac to the home of Finley’s father, which was within walking distance of the
Witnesses saw Dupree’s car pull into the parking lot of the apartment complex’s poolhouse, heard a single gunshot, and saw two men, who matched the descriptions of Jordan and Taylor, jump out of the car and run away in the direction of Finley’s father’s home, where Appellant and Finley were waiting. After Jordan and Taylor met up with Appellant and Finley, Appellant and Jordan argued; Jordan then drove away alone in his Cadillac. Shortly thereafter, Finley’s father drove the three remaining men to a nearby mall. Appellant, Finley, and Taylor walked through the mall but left within minutes, as Finley’s girlfriend picked them up and then dropped them off at their respective homes. That evening, Appellant told an acquaintance about the events of the day, saying that he and the others needed money, so they planned and attempted the robbery of Dupree.
After Dupree was shot in his car, his foot remained on the accelerator, causing the car to catch fire. A passerby pulled Dupree out of the car, and he was taken to a hospital, where he later died from a gunshot wound to the head. The police found a cell phone linked to Taylor lying outside the front passenger side of Dupree’s car. Phone records showed numerous calls between the victim and Appellant and Jordan in the hours before the murder.
Appellant testified at trial that he had been drinking and partying the night before and continued to drink throughout the day of the shooting. He acknowledged being with his three co-indictees during the day, said that they talked about “thugging,” and claimed that Jordan decided to rob someone but he did not want to be a part of the robbery. Appellant said that he had contact with the victim that day only to buy marijuana and that Jordan was solely responsible for the shooting.
(b) Appellant contends that the trial court erred in denying him a directed verdict of acquittal on all charges, asserting that the evidence at trial was insufficient to support his convictions because the State did not prove beyond a reasonable doubt that he was a party to the charged crimes under OCGA § 16-2-20.
Pursuant to OCGA § 16-2-20 (b), a person may be convicted of commission of a crime even if he or she does not directly commit the crime but, instead, “[ijntentially aids or abets in the commission of the crime; or . . . [ijntentionally advises, encourages, hires, counsels, or procures another to commit the crime.”... “[Wjhether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed.”
Flournoy v. State,
Appellant admitted at trial that he was aware of the plan to rob Dupree, and the jury was entitled to disbelieve his testimony that he did not want to participate in the robbery See Vega v. State,
2. Appellant raises several enumerations of error regarding gang-related evidence that was provided to the defense shortly before trial. Eleven days before Appellant’s trial started, the State gave Appellant’s counsel booking photographs of Appellant and Finley and identified as a witness Sergeant Jesse Hambrick, a supervisor in the Criminal Investigations Division of the Douglas County Sheriff’s Office who is responsible for gang
On the Thursday before trial, the sheriff’s office executed search warrants to photograph any other tattoos on Appellant and Finley and all of the tattoos on J or dan and Taylor. The next day — the Friday before trial — the prosecutor received the additional photographs of Appellant’s tattoos from the sheriff’s office and filed a notice of discovery, which included the photographs of Appellant and related pictures of Lil Wayne, with the trial clerk’s office at 10:39 a.m. That afternoon around 4:45 p.m., the prosecutor hand-delivered to Appellant’s counsel a compact disc with these photographs. Appellant’s counsel had a problem accessing the contents of the disc, however, and she was unable to view the pictures until the Monday morning that trial began. That morning, the prosecutor provided additional discovery, which included, in pertinent part, a video of Appellant’s tattoos being photographed, the photographs of the co-indictees’ tattoos, and copies of photographs from the MySpace pages of Appellant and others.
After the jury was selected, Appellant’s counsel argued to the court that she was unable to effectively assist Appellant because she had no opportunity to review and prepare to rebut the evidence provided on Friday and that morning, and she moved to exclude the evidence or to continue the trial. The trial court denied both motions, but offered Appellant’s counsel an opportunity to interview the State’s gang expert, Sergeant Hambrick, about his expected testimony regarding this gang evidence. The court pointed out that Sergeant Hambrick was local, and the State agreed to make him available to the defense. This exchange took place seven days before Sergeant Hambrick testified in what turned out to be a ten-day trial.
(a) Appellant first contends that the trial court should have granted his motion to exclude the gang evidence that was provided to the defense on the Friday before and the morning of trial because the late disclosure violated OCGA § 17-16-4, which generally requires the prosecutor to make available to the defense no later than ten days before trial all tangible evidence that the State intends to use at trial. See OCGA § 17-16-4 (a) (3) (A). See also OCGA § 17-16-4 (c) (“If prior to or during trial a party discovers additional evidence or material... which is subject to discovery . . . such party shall promptly notify the other party of the existence of the additional evidence or material and make [it] available as provided in this article.”). If the State fails to comply with its statutory discovery obligations, the trial court has discretion under OCGA § 17-16-6 to fashion an appropriate remedy.
The trial court here found that the prosecutor had not acted in bad faith, but instead acted promptly as he received new evidence. The record indicates that the State’s investigation into whether the crimes were gang-related had started in earnest only about a week earlier, after Jordan’s trial ended. Indeed, Appellant’s trial counsel testified at the motion for new trial hearing that she did not believe that the prosecutor acted in bad faith. See Cockrell v. State,
Nor has Appellant shown that he was prejudiced by receiving the evidence on the eve of trial. As the trial court explained, Appellant was on timely notice that the State would be offering evidence of this type because several pieces of evidence provided to him more than ten days before trial indicated
Moreover, the late-disclosed evidence did not alter Appellant’s theory of defense, which was and continued to be the assertion that, despite his relationship with the co-indictees, he was merely present with them and did not aid and abet the attempted robbery. Finally, when the request by Appellant’s counsel for a continuance of the trial was denied, she was offered an opportunity to interview the State’s gang expert, who was the primary witness to discuss and explain this gang-related evidence and who did not testify until a week into the trial — at which point Appellant’s counsel vigorously cross-examined him. Accordingly, the trial court did not abuse its discretion in denying Appellant’s motion for the severe sanction of excluding the evidence that the State disclosed less than ten days before trial. See Cockrell,
(b) Appellant also claims that the prosecutor committed misconduct by violating OCGA § 17-16-4, and specifically by delaying service of the gang-related evidence that the prosecutor received on the Friday before trial for six hours — from 10:39 a.m. to 4:45 p.m. Appellant did not raise this claim at trial, however, and so it was not properly preserved for appeal. See Ford v. State,
(c) Appellant contends that even if the trial court did not err in denying exclusion of the late-disclosed evidence, the court erred in denying his motion to continue the trial. As already discussed, instead of delaying the entire trial, the court gave Appellant the opportunity to interview the State’s gang expert witness, who testified a full week later. Providing this remedy instead of a continuance was well within the trial court’s discretion under the circumstances, particularly because the allegations of gang affiliation should not have surprised Appellant’s counsel and did not alter his defense theory See Norris v. State,
(d) In his motion for new trial, Appellant raised the claims discussed above, and he subpoenaed the prosecutor to testify at the hearing on the motion about his handling of the gang evidence. The State filed a motion to quash the subpoena, which the trial court granted. Appellant contends that this ruling was reversible error because no other witness could testify about when the prosecutor received the evidence, what action he took in handling the evidence, or why he delayed service for six hours on the Friday before trial.
We review a trial court’s decision to quash a subpoena only for abuse of discretion. See Bazemore v. State,
Moreover, as we held above, Appellant failed to show prejudice from the late disclosure of this evidence and failed to preserve a prosecutorial misconduct claim during trial, and that provided a sufficient basis for denying Appellant’s claims regardless of the prosecutor’s precise actions and motivations. For these reasons, the trial court’s decision to quash the subpoena to the prosecutor was not an abuse of discretion.
(e) Turning to the substance of the gang evidence, Appellant contends that the trial court erred in ruling that evidence of his and his co-indictees’ gang affiliation was relevant. However, Appellant did not object at trial to any of the admitted gang evidence on the ground of relevance, and he therefore did not preserve this claim for review on appeal. See Hurt v. State,
(f) Finally, Appellant argues that the trial court erred in admitting unredacted pages from some of the MySpace accounts because the pages contained comments written by other MySpace users that were prejudicial to Appellant.
3. Appellant claims that his trial counsel provided ineffective assistance in two respects. To prevail on this claim, he must show that his counsel’s performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to him. See Strickland v. Washington,
(a) First, Appellant claims that his trial counsel was ineffective because she proceeded
Pretermitting whether trial counsel — who orally moved to exclude the late-disclosed evidence and to continue the trial and then vigorously cross-examined the gang expert — was deficient, Appellant has failed to prove any resulting prejudice. He does not specify what else his counsel could have argued if she had been more prepared or how such additional argument would likely have led to a different ruling. See Davis v. State,
“When a defendant claims that trial counsel performed deficiently in failing to [call] a witness for trial, the defendant may not rely on hearsay and speculation... to prove the prejudice prong . . . Rather, the defendant must introduce either testimony from the uncalled witness or a legally recognized substitute for his testimony ....
Manriquez v. State,
(b) Second, Appellant claims that his trial counsel was ineffective because she did not object to allegedly inappropriate personal attacks and improper arguments made by the prosecutor during closing argument. Arguing after the defense closing, the prosecutor said:
I didn’t want y’all to think that I’m some lying S.O.B. that manufactured a case out of thin air which is what they want y’all to believe and what they told y’all for an hour earlier today They’re the ones living in fantasy land. They’re the ones that think this ain’t serious. [Trial counsel] cracked a few jokes and then said, well, I’m not saying this isn’t serious because [Appellant’s] life is on the line. Well, first of all, he’s not facing the death penalty. If he was, y’all would have known it long ago. So for her to inject that comment into this trial is to try to play on y’all’s sensibilities.
At the motion for new trial hearing, Appellant’s trial counsel explained that she dismissed the prosecutor’s “smart aleck comments” and did not want to object to the remarks and draw the jury’s attention to them because she did not think they were clearly inappropriate. The prosecutor’s comments may have been close to, or even over, the line for permissible argument. However, given that the prosecutor was responding to arguments that Appellant’s counsel had made, that the evidence presented during the multi-day trial demonstrated that the case was not manufactured out of thin air, and that it was clear that this was not a death penalty case, the tactical decision not to object was not patently unreasonable. Appellant therefore cannot show deficient performance in this respect. See Smith v. State,
Judgment affirmed.
Notes
The victim was shot on May 11, 2010. On October 29, 2010, a Douglas County grand jury indictedAppellant, Henry Finley, James Jordan, and Brandon Taylor for malice murder, felony murder predicated on attempted armed robbery, conspiracy to commit armed robbery, and attempt to commit armed robbery. Appellant and Jordan were tried separately; Finley and Taylor were tried together. This Court previously upheld Finley’s convictions. See Finley v. State,
OCGA § 17-16-6 says in relevant part:
If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, intervie w of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .
This case was tried in 2011 and thus was governed by Georgia’s old Evidence Code. Compare OCGA § 24-1-103 (d) (new Evidence Code provision authorizing plain error review of evidentiary rulings not objected to at trial).
Appellant points to comments like “[m]e n my cuz yea we blood,” “who yall finna go shoot . . . lol,” and “B’s up B’s up bang bang.”
At trial, Appellant argued generally that all of the gang evidence was unfairly prejudicial, but when the MySpace pages were offered into evidence, he raised only a hearsay objection (which he does not raise on appeal). We note that Appellant argues that the MySpace evidence should have been excluded under OCGA § 24-4-403, but that provision is part of the new Evidence Code, andAppellant’s 2011 trial was governedby our old Evidence Code. The old Code did not contain a provision like OCGA § 24-4-403, although the case law often applied a similar test. See, e.g., Quedens v. State,