STEPP-McCOMMONS v. StateSTEPP-McCOMMONS v. State
Appellant Contevious Stepp-McCommons appeals his convictions for felony murder and other crimes in connection with the shooting death of Clarence Gardenhire.1 On appeal, Stepp-
1. Viewed in the light most favorable to the verdicts, the evidence at trial showed that Norman Lopez, Jr., and his brother-in-law, Jamar Perry, ran a business in which they would acquire, refurbish, and sell used cell phones. On occasion, they obtained inventory for their business by placing advertisements on websites like Craigslist. On August 19, 2013, Perry posted an ad on Craigslist seeking to purchase used cell phones. That same day, Stepp-McCommons’ co-defendant Malik Rice told his girlfriend he was going to rob someone by putting an ad to sell a cell phone on Craigslist. The plan was to lure the potential buyer to an abandoned house for the transaction; Rice would hide, and then rob the buyer of the cash brought for the transaction, as well as pretend to rob the
At around 6:00 p.m. that evening, Perry received a response to his Craigslist ad from Rice, and he exchanged several text messages with Rice about purchasing cell phones, including at least one iPhone. Lopez asked his stepfather, Gardenhire, to accompany Perry to the purchase location because Perry was new to the Atlanta area. Perry and Gardenhire left for the meeting at around 9:00 p.m. and drove to the address Rice provided, where there was a house that appeared to be abandoned. Perry exited the vehicle, while Gardenhire stayed seated in the passenger seat.
Stepp-McCommons met Perry and Gardenhire when they arrived, while Rice concealed himself. Stepp-McCommons asked Perry to move closer to the abandoned house near where Rice was hiding, but Perry refused, saying he did not feel comfortable doing that. Perry testified that Stepp-McCommons became “fidgety” when he realized Perry had not come alone, and Stepp-McCommons asked
At that point, Stepp-McCommons said, “give it up, then,” pulled up his shirt, and pulled out a gun, which Rice had given to him earlier. Stepp-McCommons pointed the gun at Perry, and when Gardenhire made a sudden movement, Stepp-McCommons turned the gun toward Gardenhire, firing it in rapid succession. As soon as shots were fired, Perry ran to a nearby house to get help.
Stepp-McCommons and Rice fled. While running away, Stepp-McCommons dropped Rice‘s iPhone in the back yard of a house nearby, and it was recovered shortly after the shooting. One of the men who had earlier turned down Perry‘s request to participate in the robbery testified that he saw Stepp-McCommons and Rice after the shooting. Rice told the witness that the deal “went wrong” and
Gardenhire, who was shot ten times, died at the hospital from his wounds. The medical examiner testified that the majority of the shots were fired downward at Gardenhire, consistent with Gardenhire being in a sitting position and the shooter standing. Nine-millimeter bullets recovered from Gardenhire‘s body were later matched to a nine-millimeter Smith & Wesson handgun that was found the next day in the back yard of another house near where the shooting occurred. No other gun or other caliber of ammunition was recovered at the scene or in the car in which Perry and Gardenhire were riding.
Approximately 11 days after the shooting, Stepp-McCommons spoke with police. After initially denying any involvement, he gave them a handwritten statement saying that he agreed to go with Rice the night of the shooting to sell an iPhone. Stepp-McCommons stated that he was showing the phone to one man (Perry), when the
At trial, Stepp-McCommons testified that Rice never told him he planned to rob anyone; instead, he thought he was accompanying Rice to sell a cell phone. Nevertheless, when a friend gave Rice a gun “for protection,” Stepp-McCommons knew they were going to a place where they would need protection, and Stepp-McCommons told Rice to give the gun to him. At the meeting location, Stepp-McCommons took Rice‘s phone to show the men while Rice waited behind a tree. Stepp-McCommons asked the men if they had any weapons, and Gardenhire stepped out of the car to show that he did not have a weapon. Stepp-McCommons testified that after sitting back down in the car, Gardenhire reached for something silver, so Stepp-McCommons “jumped” at Gardenhire, they wrestled, and Stepp-McCommons shot Gardenhire, although he “think[s]” Gardenhire
Though not enumerated as error, consistent with our customary practice in murder cases, we have reviewed the sufficiency of the evidence presented at trial. The evidence showed that Stepp-McCommons and Rice planned to meet Perry to rob him; that they armed themselves in preparation; that Gardenhire was shot ten times during the course of the robbery; that Stepp-McCommons and Rice fled the scene; and that other than the gun that Rice gave to Stepp-McCommons, there was no gun or ammunition of a different caliber recovered at the scene. Thus, we conclude that the evidence was sufficient to authorize a rational jury to reject Stepp-McCommons’ claim of self-defense and to find him guilty beyond a reasonable doubt of the crimes for which he was
2. Stepp-McCommons asserts that the trial court erred in failing to give his requested charge on the affirmative defense of accident and in refusing his requests to charge the jury on involuntary manslaughter and reckless conduct as lesser included offenses. To justify a jury instruction on an affirmative defense, “there need only be slight evidence supporting the theory of the charge.” Garner v. State, 303 Ga. 788, 790 (2) (815 SE2d 36) (2018) (citation and punctuation omitted). Similarly, “in order to authorize a jury instruction on a lesser included offense, there must be some evidence in the record that the defendant committed that offense.” Daniel v. State, 301 Ga. 783, 785 (II) (804 SE2d 61) (2017). But where “the evidence shows either the commission of the completed
(a) Accident. Stepp-McCommons argues that the trial court erred when it failed to give his requested accident charge under
However, Gardenhire was shot ten times, and the evidence showed that the majority of the shots were fired downward at Gardenhire with the shooter in a standing position. Stepp-McCommons testified that he shot Gardenhire because Gardenhire was coming at him with a weapon. Stepp-McCommons also said he kept shooting “rapidfire” because Gardenhire kept coming at him and he was trying to get Gardenhire to stop. Additionally, Stepp-McCommons explained that he shot Gardenhire “unintentionally
Therefore, the evidence, including Stepp-McCommons’ own testimony, shows that Stepp-McCommons intended to shoot the gun at Gardenhire, and there was no evidence supporting his argument that the jury could have found the shooting to be the result of an accident or misfortune. Thus, the trial court did not err in refusing to charge on accident as an affirmative defense. See Shorter v. State, 270 Ga. 280, 280 (2) (507 SE2d 757) (1998) (trial court did not err in refusing to give accident charge where “the evidence presented at trial, including [defendant‘s] own testimony, demonstrated that [defendant] intentionally pointed the gun and fired[,]” and there was “no evidence from which a jury could infer that the gun was fired as
(b) Involuntary Manslaughter. Likewise, we see no error in the trial court‘s refusal to give Stepp-McCommons’ requested jury charge on involuntary manslaughter based on criminal negligence.
“A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.”
(c) Reckless Conduct. Stepp-McCommons also contends that the trial court erred in refusing to give his charge on the lesser included offense of reckless conduct. However, like the lesser included offense of involuntary manslaughter, “[r]eckless conduct is an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily safety of another.” Lindsey v. State, 262 Ga. 665, 666 (2) (b) (424 SE2d 616) (1993). See also State v. Springer, 297 Ga. 376, 381 (1) (774 SE2d 106) (2015). Accordingly, for the reasons discussed above, we conclude that the trial court did not err in refusing to give Stepp-McCommons’ requested charge on reckless conduct.
To establish plain error, Stepp-McCommons must show “that the error was not affirmatively waived; that it was obvious beyond reasonable dispute; that it likely affected the outcome of the proceedings; and that it seriously affected the fairness, integrity, or public reputation of the proceedings.” Howard v. State, 307 Ga. 12, 15 (2) (834 SE2d 11) (2019). “To prevail on this argument requires [Stepp-McCommons] affirmatively to establish all four prongs of the plain error test, which is a difficult standard to satisfy.” Reed v. State, 304 Ga. 400, 405 (3) (819 SE2d 44) (2018).
During deliberations, the jury sent a note to the trial judge, which she read aloud in the courtroom: “Does the definition of causing for death, closed quote, in felony murder include both direct and indirect causes?”4 The trial judge then said that she thought “the
Pretermitting whether counsel‘s agreement with the trial court‘s response constituted an affirmative waiver of the issue, we conclude that the trial court committed no error. “[T]he need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” Davis v. State, 287 Ga. 173, 175 (3) (695 SE2d 251) (2010) (citation and punctuation omitted). Therefore, “[t]he trial court had discretion to decline to answer the jury‘s question directly,” and instead to direct the jurors to rely on instructions previously given. Redding v. State, 296 Ga. 471, 473 (2) (769 SE2d 67) (2015).
Here, the trial court gave the pattern jury charges on felony
Moreover, Stepp-McCommons has failed to show that the failure to respond differently to the jury‘s question likely affected the outcome of the trial. This Court has held that “the felony murder statute requires only that the defendant‘s felonious conduct proximately cause the death of another person.” State v. Jackson, 287 Ga. 646, 660 (6) (697 SE2d 757) (2010). The evidence showed that Gardenhire died directly as the result of multiple gunshots fired
Accordingly, Stepp-McCommons has not shown that the trial court committed plain error in its handling of the jury‘s question.
4. Stepp-McCommons next asserts that he received ineffective assistance of counsel when his trial counsel failed to object to the trial court‘s response to the jurors’ causation question; failed to review the discovery provided by the State and to present exculpatory or impeachment evidence based on the State‘s discovery; and failed to request a hearing to determine the voluntariness of his statements to police.
To establish this claim, Stepp-McCommons must prove both that his counsel‘s performance was constitutionally deficient and that the deficiency resulted in prejudice to his case. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To establish deficient performance, Stepp-McCommons must
(a) Stepp-McCommons first asserts that his trial counsel‘s performance was deficient because he failed to object to the trial court‘s response to the jurors’ question about causation. However, as we concluded that the trial court did not err in its handling of the juror‘s question, Stepp-McCommons cannot show that his trial counsel‘s performance was deficient in failing to raise an objection. See Crump v. State, 301 Ga. 871, 873 (2) (804 SE2d 364) (2017) (“Failure to make a meritless objection cannot be evidence of
Moreover, “this Court has equated the prejudice step of the plain error standard with the prejudice prong for an ineffective assistance of counsel claim.” Hampton v. State, 302 Ga. 166, 168-69 (2) (805 SE2d 902) (2017). Thus, even if we assume that trial counsel performed deficiently in failing to object to the trial court‘s response, we have already determined that Stepp-McCommons has failed to show that it was likely that the outcome of his trial would have been different if his trial counsel had so objected, so we also conclude, for the reasons discussed in Division 3, that he has failed to show the requisite prejudice under Strickland. See Jackson v. State, 306 Ga. 69, 84-85 (4) (b) (829 SE2d 142) (2019). Accordingly, the trial court correctly denied Stepp-McCommons’ ineffective assistance of counsel claim on this ground.
(b) Stepp-McCommons next contends that trial counsel was deficient in failing to review the State‘s discovery and to present exculpatory and impeachment evidence.
The record demonstrates that trial counsel filed a motion for
During the hearings on the motion for new trial, Stepp-McCommons’ appellate counsel introduced recordings from the State‘s file containing police interviews with Stepp-McCommons and three other individuals who testified at trial: Ivory Stepp, Lopez, and Perry. Stepp-McCommons’ claim of ineffective assistance of counsel is based on the interview of Lopez by one of the DeKalb County Police detectives, during which the detective and Lopez discussed that Perry was telling multiple stories about what happened the night of the shooting and that there were differences between what he told the family and what he told police. The
However, Stepp-McCommons has not identified any of the purported stories or “lies” told by Perry that he contends would have been exculpatory or a proper vehicle for impeachment. The only discrepancy in Perry‘s stories discussed by Lopez and the detective during the interview was that Perry told police that he immediately ran when the shots were fired, but he told Gardenhire‘s family that he tried to help Gardenhire by displaying the money he brought to buy the phone. Lopez and the detective discussed that Perry may have been just trying to “save face” with the family. Moreover, Lopez told the detective that Perry did not own a gun, and both Lopez and the detective agreed that Perry had no motive for shooting Gardenhire as Perry was carrying the money that night, and
Moreover, as found by the trial court, the evidence in the Lopez interview was cumulative of other evidence presented at trial. The detective told Lopez during his interview that the detective‘s doubts about Perry came from his discussions with Gardenhire‘s wife and daughter, in which they expressed their concerns about Perry‘s conflicting stories about what had happened on the night of the shooting. At trial, Rice‘s counsel elicited testimony that Gardenhire‘s wife and daughter had approached one of the detectives to raise concerns about Perry‘s conflicting stories and to tell him that they did not trust Perry and did not think Perry was telling the truth. Stepp-McCommons’ trial counsel referred to this evidence in his closing argument to suggest that the State was
Thus, Stepp-McCommons has failed to show that the content of the interview contained exculpatory evidence raising a reasonable probability that, but for trial counsel‘s failure to play it at trial or use it for impeachment purposes, the results of the trial would have been different. Accordingly, Stepp-McCommons has failed to demonstrate that he received ineffective assistance of counsel on this ground. See Shank v. State, 290 Ga. 844, 848 (5) (a) (725 SE2d 246) (2012) (claim of ineffective assistance of counsel fails where appellant did not show that further investigation by counsel would have resulted in any significant exculpatory evidence and thus could not establish prejudice resulting from allegedly deficient investigation).
(c) Stepp-McCommons further argues that his trial counsel was deficient in failing to request a hearing under Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964), regarding his statements to police and that if such hearing had been held, his
Stepp-McCommons’ trial counsel never requested a Jackson-Denno hearing, and the trial court did not make a ruling on the voluntariness of the statements before they were introduced at trial. Nevertheless, the State used the statements to rebut Stepp-McCommons’ trial testimony.6 Even if we assume that trial counsel was deficient in failing to request a hearing, Stepp-McCommons must still establish that he was prejudiced by this deficiency. To establish the requisite prejudice under Strickland, Stepp-McCommons must show that if his trial court had requested a Jackson-Denno hearing, his statements would have been excluded and, without the statements, a reasonable probability exists that the result of the trial would have been different. See Griffin v. State, 274 Ga. 211, 212 (2) (553 SE2d 271) (2001).
Significantly, at the second motion for new trial hearing, Stepp-McCommons’ appellate counsel introduced an audio recording of his statements to police. That recording confirms the detectives’ testimony that they read Stepp-McCommons his rights as set out in Miranda and that Stepp-McCommons agreed to talk with them.
Thus, the evidence that would have been presented at a Jackson-Denno hearing would have authorized the trial court, considering the totality of the circumstances and based on a preponderance of the evidence, to determine that Stepp-McCommons knowingly and voluntarily waived his rights under Miranda and that his statements were voluntary. See State v. Rumph, 307 Ga. 477, 477 (837 SE2d 358) (2019) (“‘The trial court determines the admissibility of a defendant‘s statement under the preponderance of the evidence standard considering the totality of the circumstances.‘” (citation omitted). We conclude, therefore, that the trial court properly denied Stepp-McCommons’ motion for new trial on this ground. See Speziali v. State, 301 Ga. 290, 294 (2) (a) (800 SE2d 525) (2017).
Judgment affirmed. All the Justices concur.