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. 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.
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
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.
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."
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.
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
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.
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.
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
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
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.
The evidence was sufficient to sustain the
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.
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. We disagree.
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).
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.
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 ...