810 S.E.2d 515 | Ga. | 2018
*518Derek Kemp, Harvey Hogans, and Alphonso Watkins appeal from their convictions for malice murder and other crimes in connection with the shooting death of Derek Gray.
We conclude that the evidence was sufficient to sustain the defendants' convictions, there was no error in admitting or refusing to strike Lewis's testimony, and the so-called "non-examining doctor" was the medical examiner who was allowed to testify about the autopsy he performed on the victim. The defendants' claims that they wish to "preserve" present nothing for review because the defendants have not raised any meaningful arguments on appeal in this respect. We affirm their convictions.
Viewed in the light most favorable to the jury verdicts, the trial evidence showed the following. Kemp and Watkins were gang members associated with the Loyal to the Gang ("LTG") faction of Gangster Disciples ("GD"). Although not a member of the gang, Hogans associated with Watkins and other GD members. In 2011, LTG members would typically have monthly meetings at the apartment of "Captain Kirk" in the Mission Galleria apartment complex located off Cobb Parkway.
On the morning of July 1, 2011, Gray borrowed $1,000 from his brother and told him that he planned to buy marijuana from Watkins, his long-time supplier. The defendants had a different plan: to lure Gray with the prospect of a drug deal and then rob him. Several days prior to the contrived drug deal, Kemp was overheard telling someone, "I'm going to rob this man for anything he got, I don't care. I need to eat, too. Whatever he got I'm taking."
Beginning at 8:30 p.m. on July 1 and continuing after Gray left his apartment at 9:00 p.m., Gray exchanged phone calls with Kemp and Watkins. Gray had at least $1,000 when he left the apartment. The last call from Kemp to Gray occurred at 9:58 p.m., at which time both men were located near Circle 75 Parkway. Watkins was also in the same area at that time. Cell tower records show that Kemp's cell phone started moving south toward Atlanta at about 10:17 p.m., pinging off a tower near I-20 at about 10:44 p.m. Cell tower records similarly show Watkins's cell *519phone moving south into the west side of Atlanta at about the same time.
Around 10:30 p.m., Michael Sanders was sitting outside his house located near the former site of the Georgia Dome in downtown Atlanta when a light-colored Ford Taurus pulled up. The car drove away after a man exited the vehicle and fell to the ground. The man, later identified by the police as Hogans, asked to use Sanders's phone to call an ambulance because he had been shot. An Atlanta police officer interviewed Hogans at the hospital, and Hogans gave evasive, vague, and inconsistent answers about the shooting. Atlanta police investigated Hogans's claims about his shooting but could find no evidence to corroborate Hogan's explanations for the shooting.
When Gray did not return home on the night of July 1, his wife began calling him and his friends. She then went searching for him and filed a missing person report the next morning. Later that day, a woman was walking from the Mission Galleria apartments toward Circle 75 Parkway when she found a dead body that was later identified as Gray. He had multiple gunshot wounds to his chest, buttocks, knee and thumb. Several .38 caliber bullets were recovered from his body.
On the morning that Gray's body was found, a Fulton County police officer responded to a call about a vehicle fire. The responding officer concluded that the car was a Ford Taurus, but it was too severely burned to make out the car's color. Around the same time, a DeKalb County police officer visited Kemp in reference to Kemp's report that his silver Ford Taurus (which actually belonged to his mother) had been stolen. Kemp told the officer that he last saw the vehicle the previous night at about 9:00 p.m. Police later discovered that the burned vehicle was Kemp's Ford Taurus and that shots had been fired inside the vehicle.
Also on July 2, Watkins sent a text message asking the recipient, "Know somebody who want[s] to buy a strap," and specifying in another text message, "a .38 and .45 snub nose." Police also found on Watkins's cell phone a photograph of a .45 Taurus Judge revolver that Gray's brother identified as the same weapon that Gray had recently acquired.
Not long after the crimes, Watkins told fellow gang member Steve Lewis that Kemp and "his guy" messed up, but did not elaborate; unbeknownst to Watkins, Lewis had been working as a police informant for more than a year. In a subsequent conversation, Watkins said that he needed to get out of town, but did not explain why. Once rumors started circulating about a body being found, Watkins told Lewis that "people gonna know they don't play no more because of what they going to find around the corner from Captain Kirk's crib."
By December 2011, Watkins had been arrested and shared a jail pod with Lewis, who had been arrested on unrelated charges and was no longer working as a police informant. According to Lewis, Watkins said that when Gray contacted him to buy marijuana, he responded that he didn't have any but that he would send someone who did to pick up Gray. Watkins said that Kemp and Hogans picked up Gray and drove him to the Mission Galleria apartments; while there, Hogans turned around and pointed a gun at Gray, who was sitting in the back seat. Gray pulled out his gun and shot Hogans, who returned fire and killed Gray. Watkins said he was waiting nearby and could see the gunfire. When Watkins got to the car, he said to Kemp and Hogans, "What the f* *k," because they were only supposed to rob Gray. Watkins said that he, Kemp, and Hogans then dumped Gray's body, Hogans was dropped off with instructions to say he was shot by an armed robber, and Kemp was instructed to get rid of his car.
1. The evidence was sufficient to sustain the defendants' convictions.
Although only Kemp and Watkins argue that the evidence was insufficient to sustain their convictions, we consider the sufficiency of the evidence with respect to all of the defendants (as is our general practice in murder cases). When reviewing the sufficiency of the evidence under the standard set forth by Jackson v. Virginia,
(a) Kemp's claims
Kemp argues that there was insufficient evidence to support his convictions for malice murder, armed robbery, and possession of a firearm during the commission of a felony.
Kemp argues that the evidence did not show that Gray's killing was done with malice aforethought, because Hogans shot Gray only after Gray shot first and there was no evidence that he or his co-conspirators planned to kill the victim. A conviction of malice murder, however, does not require a showing that the defendant had a " 'premeditation' or a 'preconceived' intention to kill; malice aforethought can be formed instantly." Wynn v. State,
Given the evidence outlined above, the jury was authorized to conclude that Hogans acted with malice in killing Gray. Specifically, the evidence shows that Hogans fired multiple shots at the victim at close range in Kemp's vehicle. Although Lewis testified that Watkins claimed that the victim fired the first shot, the jury was not required to believe every aspect of Lewis's testimony. See Tate v. State,
Kemp also argues that he could not be held responsible for Gray's murder because the evidence does not show that he knew Hogans had a gun or planned to use it during the robbery. As Kemp concedes, the evidence was sufficient to establish that he conspired to commit and was a party to the robbery. Contrary to Kemp's argument, it was not necessary to establish that Kemp intended to use a firearm or to kill Gray in order for Kemp to be held liable for Hogans's actions, because it was a reasonably foreseeable consequence that the intended victim of a robbery would be killed. See Hicks v. State,
(b) Watkins's claims
Watkins argues that the evidence was insufficient because he did not participate directly in any crime against the victim, and the evidence did not rule out the reasonable *521hypothesis that he was merely near Gray's location in furtherance of a drug deal that in no way involved Hogans and Kemp. We reject his arguments.
Watkins admitted to Lewis that he contrived a fake drug deal whereby Kemp and Hogans would rob Gray and that he took part in destroying or concealing evidence of Gray's death. Moreover, after Gray's death, Watkins attempted to sell a gun that Gray's brother identified as belonging to Gray. Thus, regardless of whether Watkins was in the vehicle when Gray was shot, the jury was authorized to reject Watkins's claim that he was merely present in the area and was not involved with the planned robbery. See Lowe v. State,
(c) Hogans's convictions
As described above, the evidence was also sufficient to support Hogans's convictions.
2. All of the defendants' challenges to the admission of Lewis's testimony fail.
Raising various arguments, the defendants all contend that the trial court erred in admitting or refusing to strike Lewis's testimony about conversations he had with Watkins in which Watkins discussed the defendants' participation in the crimes.
(a) Watkins's statements to Lewis were not obtained in violation of his Sixth Amendment right to counsel.
Hogans and Watkins argue that the trial court erred in denying their motions in limine to exclude Watkins's jailhouse confession to Lewis on the basis that the statements were obtained in violation of Watkins's right to counsel. Hogans and Watkins argue that Lewis was acting as a government agent at the time Watkins discussed the defendants' participation in the crimes, and that, as a result, Watkins's statements were inadmissible under Massiah v. United States,
Under Massiah, the Sixth Amendment right to counsel is violated by the admission of incriminating statements that a government agent deliberately elicits in the absence of counsel after judicial proceedings have been initiated against the defendant. Higuera-Hernandez v. State,
The evidence shows that, beginning in August or September 2010, Lewis began working as a confidential informant for a police unit charged with investigating organized crime and drug trafficking. When Gray was killed in July 2011, Watkins was already the *522subject of an ongoing investigation, and Lewis was providing information as part of that investigation. In July 2011, after Gray's death, Lewis told his police handler about conversations he had with Watkins.
Under these circumstances, there was no Massiah violation here. Watkins made the incriminating statements in December 2011, by which time Lewis's status as a confidential informant had been terminated. There was no evidence that the police promised Lewis any benefit whatsoever in exchange for obtaining information from Watkins. Indeed, the police handler stated that he did not initiate contact with Lewis after his arrest and said he could not help Lewis in exchange for any information Lewis had. Thus, Lewis was not a government agent. See Burgan v. State,
(b) The trial court did not err in admitting Watkins's statements against Kemp and Hogans as co-conspirator statements under OCGA § 24-8-801 (d) (2) (E).
Kemp and Hogans argue that the trial court erred in admitting Lewis's testimony about Watkins's statements against them under OCGA § 24-8-801 (d) (2) (E), because the hearsay statements were not made "during the course and in furtherance of" a conspiracy. We disagree.
Rule 801 (d) (2) provides that admissions by party-opponents shall not be excluded under the hearsay rule. As applicable here, an admission by a party-opponent includes a statement offered against a party that was made by a co-conspirator "of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy." OCGA § 24-8-801 (d) (2) (E). This co-conspirator rule, established with the passage of the new Evidence Code, largely tracks (but is not identical to) Rule 801 (d) (2) (E) of the Federal Rules of Evidence and also carries forward aspects of the co-conspirator rule that existed under our old Evidence Code-principally, that a conspiracy does not necessarily end upon the achievement of its object.
*523State v. Wilkins,
To admit evidence under Rule 801 (d) (2) (E), the State is required to show by a preponderance of the evidence that a conspiracy existed, the conspiracy included the declarant and the defendant against whom the statement is offered, and the statement was made during the course and in furtherance of the conspiracy. See United States v. Hasner,
In reviewing the trial court's decision regarding the admissibility of evidence, we accept the trial court's factual findings, such as whether a statement was made in furtherance of a conspiracy, unless they are clearly erroneous. See Wilkins,
In denying the motions in limine to exclude Lewis's testimony regarding Watkins's statements, the trial court did not make any express factual findings, but we can infer from its denial of the motions that it implicitly found that Watkins's statements were made in the course of and in furtherance of a conspiracy. United States v. Walker,
(i) The trial court was authorized to conclude that Watkins's statements were made in the course of a conspiracy.
Kemp and Hogans argue that Watkins's statements were not made in the course of a conspiracy, because the conspiracy ended with Gray's death. But the defendants were alleged to have been part of a larger criminal conspiracy. See United States v. Bowe,
Here, Lewis testified about the Gangster Disciples' existence and criminal gang activities. He also testified about the defendants' association with the Gangster Disciples. That Watkins would discuss his participation in crimes with Lewis, an admitted gang member, helped establish that Watkins was also associated with the gang. The fact that the defendants accomplished the specific acts charged-the crimes against Gray-did not necessarily end their involvement or association with the Gangster Disciples; nor did the criminal street gang's purpose necessarily end with those crimes. As a result, the trial court was authorized to conclude that the State made a sufficient showing that Watkins's statements were made in the course of a conspiracy.
The fact that the defendants were ultimately acquitted of the gang charge does not alter the analysis. The trial court had to make a determination about the admissibility of the evidence before the conclusion of the trial and had to decide the factual question of whether the statements were made during the course of a conspiracy under a preponderance of the evidence standard. See OCGA § 24-1-104 (a) (preliminary questions regarding the admissibility of evidence are to be resolved under a preponderance of the evidence standard). The jury, on the other hand, made its determination about whether the specific crimes against Gray were committed to further the conspiracy (the gang), and its determination was made under a reasonable doubt standard.
(ii) The trial court also was authorized to conclude that Watkins's statements were made in the furtherance of a conspiracy.
Kemp and Hogans rightly argue that mere idle chatter or a narrative of past conduct is generally not considered to be in furtherance of the conspiracy. Narratives of past events, however, are admissible under Rule 801 (d) (2) (E) if they serve some present purpose in the conspiracy. "Statements made to solicit membership or participation in the conspiracy and statements explaining the conspiracy to a new member are made in furtherance of the conspiracy." United States v. Miles,
Given the liberal standard we use to determine whether a statement is in "furtherance of a conspiracy," the trial court was authorized to conclude that Watkins's statements to Lewis met that standard. The State sought to prove that the defendants were part of or associated with the same criminal street gang as Lewis, and this, as we explained above, was a type of conspiracy. Watkins's statements to Lewis could be interpreted as fostering cohesiveness with another gang member or as providing information to a fellow co-conspirator (of the *525criminal street gang). The trial court was thus authorized to determine that the State established by a preponderance of the evidence that Watkins's statements about his involvement in the crime were in furtherance of the criminal street gang conspiracy. See Holt,
(c) The trial court did not err by denying Hogans's motion for a mistrial or striking Lewis's testimony on the ground that Lewis materially contradicted his pretrial statements.
Hogans argues that the court should have granted his motion for a mistrial or stricken Lewis's testimony after Lewis testified that Hogans was the shooter, which materially contradicted his pretrial statements that Watkins and Kemp both shot Gray. Hogans cites cases where the prosecutor knowingly used perjured testimony and argues that his conviction was obtained in violation of his right to a fair trial, his right to effective assistance of counsel, and his due process rights. See Nwakanma v. State,
(d) There was no error in failing to declare a mistrial when Lewis testified about alleged death threats he received as a result of his cooperation.
When Hogans was cross-examining Lewis about his prior statements to police and why he couldn't recall details as clearly as he had the day before on direct testimony, Lewis responded, "Yeah, and you cut us off and I been sitting in the hole." Hogans asked, "Yeah, kind of tough when you're sitting in the hole, isn't it?" Lewis answered, "Yeah. Contract on my head, so I can't be around everybody." The defendants objected and moved for a mistrial, but the trial court denied their motions, told the jury that the statement was not in response to a question asked, and instructed the jury to disregard the statement.
Hogans and Watkins argue that the court erred in failing to declare a mistrial because Lewis's statement was highly prejudicial as it implied that they had the ability and desire to have others kill Lewis and suggested that he was courageous to testify in the face of death threats, thereby improperly bolstering his own credibility. We conclude, however, that the trial court properly addressed the *526potential prejudice from Lewis's brief, unsolicited statement by ordering jurors to disregard it. See Bunnell v. State,
3. The trial court did not err in allowing a medical examiner to testify about the post-mortem examination of the victim.
Watkins argues that allowing the former Chief Medical Examiner of Cobb County, Dr. Brian Frist, to testify in this case violated his confrontation right. He contends that because Dr. Frist was not among the Grady Hospital employees who conducted a physical examination of the victim and did not author the official report regarding bullet trajectories, his testimony was not based on his personal knowledge and was therefore inadmissible. Because Watkins did not object to Dr. Frist's testimony, we review Watkins's claim for plain error only. See OCGA § 24-1-103 (d). To establish plain error, Watkins
must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.
Lupoe v. State,
There was no error, much less plain error, in allowing Dr. Frist to testify. Watkins argues that only the Grady Hospital doctors were the examining physicians, and so the State was allowed to call only those doctors. But Dr. Frist was an examining doctor, even if he examined Gray only during the autopsy. There is no evidence that Dr. Frist testified about another doctor's observations or conclusions. Compare Bullcoming v. New Mexico,
4. The defendants' purported effort to "preserve" claims presents nothing for review.
Watkins and Kemp purport to preserve arguments for purposes of possible future habeas corpus proceedings should there be a change in the law. With respect to cell-tower tracking evidence that they claim should have been suppressed, the defendants merely adopt by reference arguments previously made in the trial court. This is insufficient to satisfy this Court's Rule 22, which states in pertinent part, "[a]ny enumerated error not supported by argument or citation of authority in the brief shall be deemed abandoned. All citations of authority must be full and complete." (Emphasis supplied.) Accordingly, we will not consider arguments not properly presented in the defendants' briefs. See Holmes v. State,
Judgments affirmed.
All the Justices concur.
The crimes occurred on July 1, 2011. An indictment filed on October 7, 2011 charged all of the defendants with malice murder (count 1), two counts of felony murder (counts 2 and 3), aggravated assault (count 5), violation of the Georgia Street Gang and Terrorism Prevention Act (count 6), armed robbery (count 7), concealing the death of another (count 8), and possession of a firearm during the commission of a crime (count 9). The indictment also charged Kemp with an additional count of felony murder (count 4). Following a joint trial in January 2014, the jury found Kemp guilty of all counts except for one count of felony murder (count 4) and the gang charge (count 6). The jury also found Watkins and Hogans guilty on all counts for which they were indicted, except for a felony murder count (count 3) and the gang charge (count 6). The trial court sentenced the defendants to life without parole for malice murder, a concurrent life term for armed robbery, a concurrent 10-year term for concealing the death of another, and a consecutive 5-year term for the firearm offense. The trial court vacated the felony murder counts and merged the aggravated assault counts into malice murder. The defendants filed motions for new trial, which were denied by the trial court on June 27, 2016. The defendants filed timely notices of appeal, and their cases were docketed to this Court's August 2017 term. Kemp's appeal was orally argued, and Hogans's and Watkins's appeals were submitted for decisions on the briefs.
Kemp's challenges to the guilty verdicts on the felony murder and aggravated assault counts are moot because these counts were vacated or merged. See White v. State,
Hogans also raises an ineffectiveness claim in the event we conclude that some of his challenges to Lewis's testimony were not properly preserved. We conclude that he did preserve his arguments and, therefore, do not consider them in the context of an ineffective assistance claim.
Although Hogans also purports to raise claims based on federal due process and the state constitutional right to counsel, he does not argue that his claims are to be analyzed differently in this context. Indeed, the cases he relies on concern only Sixth Amendment jurisprudence.
Although neither Hogans nor Watkins challenges these statements, any such challenge would fail because the statements were made prior to Watkins's arrest and initial appearance in late July 2011. See O'Kelley,
Where provisions of the new Evidence Code are borrowed from the Federal Rules of Evidence, we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit. See Olds v. State,
In passing, Hogans also argues that the admission of Watkins's statements violated the Confrontation Clause of the United States Constitution and a similar provision of the Georgia Constitution. Hogans cites only Crawford v. Washington,