KEMP v. THE STATE (Three Cases)KEMP v. THE STATE (Three Cases)
Derek 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.1 Kemp and Watkins challenge the sufficiency of the evidence to support their convictions, and the defendants all raise various
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
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 phone moving south into the west side of Atlanta at about the same time.
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
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
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
(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.2 We disagree.
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
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, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994) (“The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.“). In any case, the evidence establishes that Hogans was the aggressor in initiating the conflict by pointing a gun at the victim. After Hogans fired multiple shots that killed the victim, he and the other co-defendants dumped the victim‘s body and attempted to destroy evidence of the crime. From this evidence, the jury was authorized to conclude
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, 295 Ga. 268, 272-273 (1) (759 SE2d 509) (2014). As a result, “[t]he intent of the actual killer may be imputed to the other active members of the conspiracy even though the homicide may not have been a part of the original common design.” Williams v. State, 276 Ga. 384, 385 (3) (578 SE2d 858) (2003). Thus, the jury could find Kemp criminally responsible for Gray‘s death because his participation in the robbery carried with it the foreseeable risk that Hogans would bring a gun to the robbery and use it to shoot and kill Gray. See McLeod v. State, 297 Ga. 99, 103 (2) (772 SE2d 641) (2015); Van Huynh v. State, 257 Ga. 375, 377 (359 SE2d 667) (1987). And, although not contested by Kemp, the evidence was plainly sufficient to sustain his conviction for concealing the death of another.
(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 hypothesis 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, 295 Ga. 623, 625 (1) (759 SE2d 841) (2014) (“[Q]uestions as to the reasonableness of hypotheses other than the guilt of the defendant are generally for the jury to decide, and this Court will not disturb a finding of guilt unless the evidence is
(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.3 We examine each argument in turn.
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, 377 U. S. 201 (84 SCt 1199, 12 LE2d 246) (1964), and its progeny.4
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, 289 Ga. 553, 554 (2) (714 SE2d 236) (2011); O‘Kelley v. State, 278 Ga. 564, 565-567 (2) (604 SE2d 509) (2004), disapproved on other grounds by Stinski v. State, 286 Ga. 839, 856 (61) n. 5 (691 SE2d 854) (2010). An informant may be classified as a government agent “only if there is both (1) an agreement between the informant and government authorities to exchange incriminating information for payment, lenient treatment, or some other benefit and (2) some action by the informant designed deliberately to elicit incriminating information.” Rai v. State, 297 Ga. 472, 478-479 (3) (775 SE2d 129) (2015). Neither of these elements is present here, and so the defendants’ claim fails.
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 subject 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.5 The police officer, who was not involved in the murder investigation,
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
(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
To admit evidence under
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, 302 Ga. at 160. We apply a liberal standard in determining whether a statement is made in furtherance of a conspiracy, and statements that further the interests of the conspiracy in some way meet this standard. Id. at 159; see also United States v. Flores, 572 F3d 1254, 1264 (11th Cir. 2009) (“The statement need not be necessary to the conspiracy, but must
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, 799 F3d 1361, 1363 (11th Cir. 2015) (in reviewing the denial of a motion to suppress, appellate court reviews the district court‘s factfindings, both explicit and implicit, for clear error). Kemp and Hogans have failed to show that these implicit factual findings are clearly wrong.
(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, 221 F3d 1183, 1193 (11th Cir. 2000) (“[T]he conspiracy that forms the basis for admitting a co-conspirator‘s out of court statements need
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
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
(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
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
(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
(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 potential prejudice from Lewis‘s brief, unsolicited statement by
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
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, 300 Ga. 233, 243 (4) (794 SE2d 67) (2016) (citation and punctuation omitted).
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, 564 U. S. 647 (131 SCt 2705, 180 LE2d 610) (2011) (introducing the testimony of a “surrogate” witness who does not perform or observe a test or certify its results violates the Confrontation Clause). And because Watkins was allowed to cross-examine Dr. Frist, there was no violation of the Confrontation Clause. McClendon v. State, 299 Ga. 611, 617 (4) (b) (791 SE2d 69) (2016) (“[A] Confrontation Clause violation occurs when a declarant is unavailable to be called as a witness, was not previously subject to cross-examination, and when the statements to be introduced at trial are ‘testimonial’ in nature.” (footnote omitted)).
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, 301 Ga. 143, 146 (2) (800 SE2d 353) (2017). And although Kemp arguably satisfies Rule 22 in challenging his recidivist sentence, he acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U. S. 224, 226-227 (118 SCt 1219, 140 LE2d 350) (1998), a decision we are bound to follow unless and until the United States Supreme Court overrules it. Therefore, the defendants’ desire to preserve claims presents nothing to review.