Abney v. State

306 Ga. 448

831 S.E.2d 778

ABNEY

v.The STATE.

S19A0741

Supreme Court of Georgia.

Decided: August 5, 2019

Steven L. Sparger, for appellant.

Meg E. Heap, District Attorney, Matthew Breedon, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine D. Emerson, Assistant Attorney General, for appellee.

Peterson, Justice.

Dwayne Leonard Abney appeals his convictions for multiple counts of malice murder and other crimes related to the shooting deaths of Kiana Marshall, Isaiah Martin, and Alexis Kitchens.¹ Abney argues that the evidence was insufficient to convict him of fleeing or attempting to elude a police officer. He also argues that the trial court erred in denying his motion for a mistrial when the State elicited testimony that violated the court’s ruling on a motion in limine and in overruling his objections to improper bolstering. We affirm because the evidence was sufficient to support his convictions, and the trial court did not err in denying his motion for a mistrial or overruling his objections.

Viewed in the light most favorable to the verdicts, the trial evidence showed that in early October 2015, Marshall allowed Jamaica Bell and Diamond Butler to move in with her in a house she was renting in Savannah. Things did not go well, and Marshall complained about Bell and Butler being messy and inviting guests with guns over to the house. Bell and Butler failed to pay their promised share of the rent, so on the morning of October 21, 2015, Marshall asked them to move out. At some point that day, Martin (Marshall’s brother) and Kitchens (Marshall’s friend) went to the house to make sure Bell and Butler left. Martin told the women to remove their things from the house or Marshall would call the police.

Butler called James Hampton, who arrived sometime later with Abney driving a dark grey Honda Accord. Hampton, Abney, Butler, and Bell left the house in Hampton’s car and made a few stops, including at a convenience store around 11:30 p.m. Butler saw that Hampton and Abney both had firearms; Hampton had a 9mm handgun, and Abney had a .380 handgun. After hearing that Marshall was planning to call the police if the women did not remove their belongings from the house that night, Bell and Butler, along with Hampton and Abney, returned to the house and began to pack their things. Bell and Butler could not fit all of their belongings into the trunk of Hampton’s car, so they asked Marshall, who had arrived at the house by this point, if they could come back later to retrieve the remaining items. Marshall said no. Hampton, while alone with Butler, asked if she wanted him to "wet that s**t," meaning shoot up the house, and Butler said yes. The group left Marshall’s house; Butler thought they were going to return so that she could shoot up the house.

Hampton dropped off Bell and Butler at a friend’s house where he had been staying. Butler tried to stay in the car because she wanted to go shoot at Marshall’s house, but Hampton insisted that she stay at the house. Hampton and Abney then drove back to Marshall’s house, went inside, and shot Martin, Marshall, and Kitchens. The three victims were shot multiple times and died from their injuries. Marshall’s neighbors reported hearing multiple gunshots around 12:30 a.m. on October 22, 2015, and one neighbor saw a grey Honda Accord drive away quickly after the shooting.

Hampton and Abney returned to Butler and Bell about 20 minutes after dropping off the women. Hampton told Butler that he had "killed all three of them." Abney, Hampton, Butler, and Bell then smoked marijuana, drank, and listened to music. Bell and Butler left Abney and Hampton that morning.

Butler met Hampton and Abney later that day. While Hampton drove around in a brown Ford Explorer, the group discussed the murders. Hampton again admitted to killing the three victims, and Abney agreed with Hampton’s account of the shooting. While in the vehicle, Abney had a .380 handgun; Hampton stated that his 9mm gun was "gone."

Police had already been looking for Hampton and the brown Ford Explorer because Hampton had shot at someone else several weeks earlier while driving the vehicle. When a police officer saw the Ford Explorer, he turned on his police lights and sirens to initiate a traffic stop, but Hampton accelerated. The officer gave chase, and Hampton told Abney and Butler that they could get out and run. Abney agreed, and so when Hampton stopped the Explorer, Abney, Hampton, and Butler fled on foot, running in different directions. The officer apprehended Abney after a short chase, backtracked along Abney’s flight path, and recovered a .380 handgun. Hampton was found and arrested the next day.

While searching the murder scene, police recovered eight 9mm shell casings with a "BHA" brand name that were later determined to have been fired from the same gun, a Hi-Point 9mm pistol. The bullets recovered from the three victims were consistent with being fired from a Hi-Point 9mm pistol. During a search of Hampton’s residence, police recovered an empty box of BHA 9mm ammunition. Police also found a photo on Hampton’s cell phone showing him holding a pistol that could have been a .380 or 9mm Hi-Point.

After their arrests, Abney and Hampton separately made incriminating statements to fellow prisoners. Abney told Eric Washington that he and Hampton went to a house from which a woman had been kicked out and drew their guns. Abney claimed that he never fired his gun and that Hampton killed three people who were inside the house. Hampton similarly told a fellow inmate that he killed the three victims by shooting them with a 9mm Hi-Point pistol. Police also recovered letters Hampton had sent to Abney while in jail in which Hampton had made an apparent attempt to align their version of events.

1. Abney argues that the evidence was insufficient to sustain his conviction for fleeing or attempting to elude a police officer, because he was merely a passenger in Hampton’s vehicle and there was no evidence that Abney encouraged Hampton to elude the police officer. We disagree.

Pursuant to OCGA § 40-6-395 (a), it is "unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop[.]" A passenger may be charged and convicted as a party to the crime if he aided and abetted in the commission of the crime, or if he intentionally advised or encouraged the driver to commit the crime. See, e.g., McNeely v. State , 296 Ga. 422, 424-425 (1), 768 S.E.2d 751 (2015) ; Westmoreland v. State , 287 Ga. 688, 693 (4) (b), 699 S.E.2d 13 (2010) ; see also OCGA § 16-2-20 (b) (3), (4). Whether a person was a party to a crime can be inferred from his conduct before, during, and after the commission of the crime. See Walter v. State , 304 Ga. 760, 766 (3) (b), 822 S.E.2d 266 (2018).

Here, the evidence showed that Abney fled on foot after Hampton led the police on a chase and stopped the Ford Explorer. Abney concedes this on appeal, but argues that this does not show that he acted in concert with Hampton as Hampton attempted to elude the police. In support of his argument, Abney relies on Carter v. State , 249 Ga. App. 354, 548 S.E.2d 102 (2001), but that case does not apply.

In Carter , the Court of Appeals reversed a conviction for fleeing from the police because there was no evidence that the defendant "did anything other than occupy the passenger seat" of a vehicle while his accomplice in the crime of hijacking engaged in a high-speed chase with police. Id. at 357 (5), 548 S.E.2d 102. But the Court of Appeals reached this conclusion in Carter in part because there was no evidence that the defendant fled on foot after the vehicle stopped. Id. Here, there is such evidence. From this evidence, along with evidence that Hampton and Abney worked in concert to kill the three victims and Abney’s affirmative response to Hampton’s suggestion during the police chase that Abney get out and run, the jury was authorized to conclude that Abney was a party to the crime of fleeing or attempting to elude a police officer. See Westmoreland , 287 Ga. at 693 (4) (b), 699 S.E.2d 13 ; Sapp v. State , 337 Ga. App. 14, 15-16, 785 S.E.2d 654 (2016).

Although Abney does not challenge the sufficiency of the evidence as to the other crimes of which he was convicted, we have independently reviewed the record and conclude that the trial evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crimes for which he was convicted. See Jackson v. Virginia , 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.E.2d 560 (1979).

2. Abney argues that the trial court erred in denying his motion for a mistrial in response to a witness’s testimony that allegedly violated the court’s ruling on a motion in limine. The trial court did not abuse its discretion.

Prior to trial, Abney moved to preclude Hampton’s cellmate, David Cowherd, from testifying about Hampton’s admissions that inculpated Abney. The trial court granted Abney’s motion, and prior to giving his testimony, Cowherd was advised that he was to discuss only what Hampton admitted doing himself and that Cowherd was not to mention Abney’s name. Cowherd stated that he understood this limitation.

After Cowherd testified on direct examination that Hampton admitted to killing the three victims, the State asked Cowherd about the significance of a particular rap song. Cowherd said that law enforcement had played "Bulletproof" for Hampton during a custodial interview, and that Hampton told Cowherd this song was important because "they were listening to it when he got back at the – the apartment or whatever. They were dancing and listening to that after they done killed them people...