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Kemp v. State

Supreme Court of Georgia

February 19, 2018



         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 challenges to the testimony of Steve Lewis, a fellow gang member. Watkins also argues that the trial court erred in permitting a "non-examining doctor" to testify about the post-mortem examination of the victim. The defendants also purport to "preserve" certain claims to the extent they may be applicable in future habeas proceedings.

         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 phone 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, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), a "reviewing court must consider all of the evidence admitted by the trial court, regardless whether that evidence was admitted erroneously." McDaniel v. Brown, 558 U.S. 120, 131 (130 S.Ct. 665, 175 L.Ed.2d 582) (2010) (citation and punctuation omitted); see also Cowart v. State, 294 Ga. 333, 343 (6) (751 S.E.2d 399) (2013). Thus, although the defendants all challenge Lewis's testimony, we consider that testimony in our sufficiency review.

         (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 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, 272 Ga. 861, 861 (1) (535 S.E.2d 758) (2000)."Whether a killing is intentional and malicious is for the jury to determine from all the facts and circumstances." Oliver v. State, 276 Ga. 665, 666 (1) (581 S.E.2d 538) (2003).

         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 S.E.2d 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." (citation and footnote omitted)). 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 that Hogans did not act with provocation or justification in shooting Gray and that he was guilty of malice murder.

         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 S.E.2d 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 S.E.2d 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 ...

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