Stephens v. State

307 Ga. 731

838 S.E.2d 275

STEPHENS

v.The STATE.

Brewer

v.The State.

S19A1345

S19A1346

Supreme Court of Georgia.

Decided: January 27, 2020

Stanley W. Schoolcraft III, for appellant (case no. S19A1345).

Kevin A. Anderson, for appellant (case no. S19A1346).

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Aslean Z. Eaglin, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for appellee.

Melton, Chief Justice.

Following a joint jury trial, Lloyd Stephens and Demetreus Brewer appeal their respective convictions for the murder of Eric Kemp.¹ Both defendants contend that the trial court committed evidentiary errors, and Stephens also argues that he received ineffective assistance of counsel. For the reasons set forth below, we affirm in both cases.

Viewed in the light most favorable to the verdicts, the evidence presented at trial shows that, on the evening of October 25, 2002, Kemp and two of his cousins, James Fields and Ernest Williams, were playing pool and drinking at an electronics repair shop owned by Kemp. At one point, Fields heard noises at the front door. Fields checked the door, but did not see anyone there. As Fields returned to the back of the shop, Kemp went to check the door himself. Fields then heard the door being kicked in, and he saw a number of men rush inside. In the commotion, Fields and Williams believed police were raiding the shop because Williams had been "cooking drugs" in the back. Fields feared being arrested on drug charges, so he and Williams fled through a back door and ran to their grandmother’s house nearby.

A few minutes before this intrusion, several witnesses saw or interacted with a group of men who exited a blue vehicle and walked down a pathway that led to Kemp’s shop. Eyewitness testimony placed Stephens, Brewer, and McDowell in this group of men. Anthony Styles, one of the witnesses, testified that Brewer, whom Styles had known since elementary school, was carrying a handgun, and McDowell was carrying a rifle. Moments after the group of men was seen approaching Kemp’s shop, multiple gunshots rang out. Thereafter, some of the men from the car were seen running back toward the same vehicle and putting firearms in the trunk.

When police first responded to the scene of the shooting, they discovered Kemp’s body slumped over a pool table. His pockets were turned inside out, he appeared to have been beaten with pool cues, and he had a gunshot wound on the left side of his neck. Ballistics tests indicated that an AK-47 or SKS-type rifle could have caused the wound. Shell casings from a .40-caliber handgun were also found at the scene.

After Kemp’s death, Brewer admitted to Gayle Glass that he had been involved in the robbery and the murder of the "beeper man." Brewer made this statement while pointing at Kemp’s shop. Further evidence indicated that Kemp was known as the "beeper man" because he repaired "beepers" at his business. Similarly, Stephens admitted to an acquaintance, Daniel Chatman, that Stephens, McDowell, and Jeremy Horton were involved in Kemp’s murder.

Within twenty-four hours of Kemp’s death, two men whom police considered to be suspects in the crime, including Horton, were killed. Based on the information available at the time, the case was then closed. It was reopened in 2010, however, when Chatman, then a federal witness in another case, implicated Stephens and McDowell in Kemp’s murder. Detectives investigated Chatman’s information further and found that Stephens and McDowell had been arrested four days after the murder. At the time of the arrest, Stephens and McDowell were passengers in a stolen vehicle found to contain both a large amount of cocaine and a .40-caliber handgun.² Officers found two spent shell casings during a search of the vehicle, one belonging to a .40-caliber handgun and one belonging to an assault rifle, the two types of guns used in the murder of Kemp. Ballistics tests confirmed that the spent .40-caliber shell casing from the murder scene in Kemp’s shop was fired from the same weapon recovered from the vehicle in which Stephens and McDowell were sitting at the time of their arrest. Additional investigation eventually led to the arrest of Brewer, based on witness information detailed above.

Neither Stephens nor Brewer raises any challenge to the sufficiency of the evidence. As is our custom in murder cases, we have nonetheless reviewed the record, and we conclude that the evidence in both cases was sufficient to enable the jury to find the defendants guilty beyond a reasonable doubt of the crimes for which they were convicted. Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Case No. S19A1345

1. Citing OCGA § 17-8-75,³ Stephens contends that the trial court committed reversible error when it failed to issue a curative instruction or declare a mistrial after the State, in its closing argument, mentioned two different people who did not testify at Stephens’s trial. We disagree in both instances.

(a) Stephens’s first contention concerns the State’s argument regarding Vanessa Thrasher, a potential witness who could not be located prior to trial. The transcript shows that the State argued the following in its closing:

PROSECUTOR: Just over there where this happened, every single witness that we talked to, first words out of their mouth: Vanessa Thrasher. I knew the name because we have a reward fund for her that’s on a big old board in our office. She was a witness in one of our cases.

DEFENSE COUNSEL: Objection, your honor. I know the State has a right to argue the case, but they have to argue facts that were put into the case. That name was not mentioned by any witness.

PROSECUTOR: Your Honor.

DEFENSE COUNSEL: That name was not mentioned by any witness. She can only argue facts in evidence.

COURT: Talk about the facts of this case, please.

PROSECUTOR: I sure will, Your Honor. These witnesses know that snitching is dangerous.

Stephens argues that the State mentioned Thrasher in order to create sympathy for the witnesses who actually did show up and testify at trial, despite the potential repercussions of "snitching." He further contends that, after sustaining his objection, the trial court was required, sua sponte, to issue a curative instruction or declare a mistrial pursuant to OCGA § 17-8-75.

"[W]here the objection to the prejudicial matter is sustained, the court has no duty to rebuke counsel or give curative instructions unless specifically requested by the defendant." (Citation and punctuation omitted.) Fleming v. State , 306 Ga. 240, 243 (2), 830 S.E.2d 129 (2019). Moreover, even assuming that the trial court erred by failing to give, sua sponte, a curative instruction, any such error was harmless because it is highly probable that it did not contribute to the verdict.⁴ Throughout the trial, numerous witnesses testified regarding their potential disincentives for coming forward to testify, including specific threats made against them by defendants as well as the general disregard in the community for those who might be labeled as a "snitch." The comment by the prosecutor, at worst, was merely cumulative of testimony from the witnesses, themselves, regarding the threats that they faced by agreeing to testify. See, e.g., Rutledge v. State , 298 Ga. 37, 40 (2), 779 S.E.2d 275 (2015) (no harm from admission of hearsay that was "largely cumulative" of other properly admitted testimony).⁵

(b) Next, Stephens contends that the trial court was required to give curative instructions or declare a mistrial after the prosecutor made a statement in closing arguments regarding Brewer’s failure to call Brewer’s mother, who was in the courtroom, as an impeachment witness. The transcript shows that the prosecutor stated:

Demetreus Brewer. How do we know that Demetreus Brewer is guilty? Gayle Glass. She smoked with Demetreus’s mother and she drank with Demetreus. If she wanted to disparage Demetreus, she could have said, I bought my drugs from Demetreus. She could have said, yes, I smoked with Demetreus. She said, I never smoked with Demetreus, just his mama. And his mama was out here in the courtroom. That you heard testimony of. If she was lying, you ain’t heard his mama say it.

Brewer’s counsel objected to the comment, but Stephens’s counsel did not adopt or ask to join the objection. Under these circumstances, Stephens has not preserved this issue for review, as an objection raised by a co-defendant does not preserve the contested issue for another co-defendant unless that co-defendant expressly adopts or joins in the objection. Jackson v. State , 272 Ga. 554, 556 (4), 532 S.E.2d 674 (2000).⁶ Accordingly, Stephens did not preserve this particular claim for review.

2. Stephens contends that trial counsel rendered ineffective assistance by failing to object when the prosecutor improperly commented on the veracity of several witnesses during the State’s closing arguments. We disagree.

In order to succeed on his claim of ineffective assistance, [Stephens] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington , 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV) ; Fuller v. State , 277 Ga. 505 (3), 591 S.E.2d 782 (2004). In reviewing the trial court’s decision, " ‘[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]" Robinson v. State , 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

Wright v. State , 291 Ga. 869, 870 (2), ...