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Taylor v. State

Supreme Court of Georgia

June 18, 2018


          BENHAM, JUSTICE.

         Brandon Lamar Taylor and his three co-indictees (Henry Grady Finley, III, James Jordan, and Christopher Cushenberry) were charged with malice murder, three counts of felony murder, and other offenses arising out of the shooting death of Javarus Dupree. Taylor was tried jointly with Henry Grady Finley, whose convictions have already been affirmed.[1] The jury found Taylor guilty of two counts of felony murder (predicated on criminal attempt to commit armed robbery and on conspiracy to commit armed robbery), as well as the underlying predicate crimes to those felony murder charges. The evidence showed that Finley and Cushenberry had run out of money and needed more to continue their weekend of partying. They pursued a plan to entice the victim, a known drug dealer, to meet them at a certain place so they could rob him. Appellant joined the other three co-indictees when they met up with the victim under the ruse of setting up a "buy." During the attempted robbery, Jordan shot the victim in the head, resulting in his death. The trial court denied appellant's motion for new trial, and he appeals.[2]

         1. Appellant challenges the sufficiency of the evidence to support the convictions, and he claims he was entitled to a directed verdict of acquittal, as he requested at trial. A summary of the evidence presented at trial, viewed in the light most favorable to the guilty verdicts returned against codefendant Finley, was set forth in this Court's opinion affirming Finley's conviction. See Finley v. State, supra, 298 Ga. at 452-453 (1). Viewed in the light most favorable to the guilty verdict returned against appellant, the evidence shows, as noted above, that Finley and Cushenberry launched a plan to rob a drug dealer to fund another night of partying. At about 3:00 p.m. on the day of the shooting, appellant got a ride with Finley to Cushenberry's house where the three men met up with Jordan. Although appellant testified at trial and denied knowing about a robbery plan, the victim's cell phone records showed multiple phone calls between the victim and Jordan during the forty-five minutes prior to the shooting, during which time appellant was with Jordan and the other men. After Finley contacted the victim to arrange a meeting, Finley drove the men to a gas station where appellant bought cigars. When the men learned the victim was nearby, appellant and Jordan exited the car and commenced walking. The victim picked them up in his car, and the three men proceeded to the parking lot just outside the pool house in a Douglasville neighborhood near Finley's apartment. Meanwhile, Finley and Cushenberry had driven Jordan's car to Finley's apartment to wait for the robbery to take place. At around 4:00 p.m., witnesses testified they heard a single gunshot and then saw two men jump out of the victim's car and run in the direction of the area where Finley and Cushenberry were waiting. Shortly thereafter, the four men met up at Finley's apartment. The victim was found shot in the head inside his car, and he died from his wounds the next day.

         Appellant testified at trial and told the jury he went along with the other three men to meet a person he was told would sell them marijuana. He admitted he and Jordan exited the vehicle Finley was driving at the gas station and commenced walking down the road, at which point the victim drove by and picked them up. Evidence was presented that Finley called appellant three times between 3:41 p.m. and 3:43 p.m., and appellant believed he spoke to Finley at least once during that time. Appellant admitted that when he spoke to Finley appellant was probably walking to meet the victim, and he testified that Finley was probably telling him to hurry up and return with the cigar he had purchased at the gas station.

         According to appellant, his intent was simply to purchase a small quantity of marijuana for his own use. After he made his purchase, he waited in the victim's car for Jordan to conduct a separate transaction. Appellant testified he was seated in the front passenger's seat of the victim's car and Jordan was seated in the rear seat behind the driver. Appellant saw Jordan getting out of the rear door of the car and appearing to reach toward his back pocket to retrieve money. Instead, according to appellant, Jordan pulled out a pistol that appellant was unaware Jordan was carrying and shot the victim. Appellant testified he was shocked to hear the pop of the pistol and to realize the victim had been shot, and he jumped out of the car so quickly that his pants belt broke. He commenced to run away, and Jordan was right behind him. Immediately, appellant realized he had dropped his cell phone and yelled this out to Jordan, and witnesses testified they saw one of the men return to the car briefly before fleeing again. The dropped phone was not retrieved, however, and investigators who discovered the phone at the scene established a connection between appellant and the phone. Appellant ran back to Finley's apartment and Jordan ran in after him. According to appellant, once the others heard that Jordan had shot the victim, they were upset over what had happened. Cushenberry and Jordan got into a shoving match and Jordan left. Finley's father then drove the remaining three men to the mall. Appellant explained that he did not call the police to report the shooting because he was too scared. Appellant's brother testified that appellant was upset when he returned home later that evening, and told his brother about the shooting. According to appellant's brother, appellant said he didn't know why Jordan shot the victim, and that "[h]e wasn't supposed to shoot him."

         Appellant denied being a member of a gang, but he admitted he got a tattoo on his abdomen, shortly after coming to Georgia to spend the summer at his mother's house, that read "M.O.B., " and evidence was presented that appellant's M.O.B. tattoo also had flames as part of the artwork. He testified that the tattoo meant "Money Over B*****s, " but he acknowledged that it can also be a gang symbol for "Member of Bloods." Testimony was presented that a flame design is commonly part of the artwork associated with the Bloods gang, and that the tattoos found on appellant's body also had other elements that were associated with the Bloods. A red bandana was found in appellant's bedroom when the authorities searched it, and testimony was presented that the color red, as well as red bandanas, are associated with a Douglas County gang connected with the Bloods. Witnesses who saw two men running from the victim's car reported that one of the men was wearing a red bandana. Evidence showed the other co-indictees were also affiliated with that Douglas County gang.[3]

          On appeal, "this Court defers to the jury's assessment of the weight and credibility of the evidence." (Citation and punctuation omitted.) Manning v. State, ___Ga. ___(1) (___ S.E.2d ___) (2018 WL 2293246) (decided May 21, 2018). From the evidence presented at trial, the jury was entitled to reject appellant's assertion that he was innocent of any plan to rob the victim. To warrant a conviction, as here, on circumstantial evidence, the evidence must exclude every other reasonable hypothesis save for the guilt of the accused. See former OCGA § 24-4-6 (now found at OCGA § 24-14-6).[4] Questions regarding the reasonableness of hypotheses are generally to be decided by the jury that heard the evidence, and so long as the evidence, even though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, this Court will not disturb a finding of guilt unless the verdict is insupportable as a matter of law. See Robbins v. State, 269 Ga. 500, 501 (1) (499 S.E.2d 323) (1998); see also Grissom v. State, 296 Ga. 406, 408 (1) (768 S.E.2d 494) (2015). For purposes of establishing proof of a defendant's guilt as a party to a crime, shared criminal intent with the perpetrator may be inferred from a defendant's conduct before, during, and after the crime. See Thomas v. State, 296 Ga. 485, 488 (1) (769 S.E.2d 82) (2015). Having reviewed the record with an eye toward the legal sufficiency of the evidence, we conclude the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. The trial evidence included Finley's recorded custodial statement in which he mentions that prior to the shooting "they were talking about hitting a lick, " meaning robbing someone. Because Finley was unavailable for cross-examination at trial, appellant also asserts in the enumeration of error regarding the sufficiency of the evidence that the admission of this statement constituted a Bruton violation.[5] In response to this argument at trial, the prosecuting attorney stated that Finley's recorded statement had been carefully redacted to delete any specific references to appellant. Having reviewed the recorded statement that was played to the jury, we have confirmed that in it, Finley does not refer to appellant as one of the conspirators who planned the robbery. In fact, shortly before Finley's use of the pronoun "they, " he was responding to the investigator's question about whether it was Cushenberry or Jordan who first talked about hitting a lick. Consequently, Finley's statement that "they were talking about hitting a lick, " when considered in context, cannot reasonably be interpreted as referring to appellant. To constitute a Bruton violation, a co-defendant's statement "standing alone must clearly inculpate the defendant." (Citations omitted; emphasis in original.) Thomas v. State, 268 Ga. 135, 137 (6) (485 S.E.2d 783) (1997).

[T]his Court and others have held that Bruton only excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and that Bruton is not violated if a co-defendant's statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.

Moss v. State, 275 Ga. 96, 98 (2) (561 S.E.2d 382) (2002). Because this statement only incriminates appellant when combined with other evidence presented at trial from which the jury could conclude appellant was involved in a conspiracy to commit armed robbery of the victim, the admission of this statement was not erroneous.

         3. Appellant notes that he was not charged under the Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq., and asserts that evidence of gang affiliation was therefore unnecessary and highly prejudicial, and that it should have been excluded since its probative value was outweighed by its prejudicial impact. But no requirement exists for a defendant to be charged with criminal street gang activity before otherwise relevant evidence of gang activity may be admitted. Wolfe v. State, 273 Ga. 670, 674 (4) (c) (544 S.E.2d 148) (2001). Like other evidence, the admission of evidence of gang activity is committed to the sound discretion of the trial court, and the court's decision to admit such evidence will not be disturbed on appeal absent an abuse of discretion. See Anglin v. State, 302 Ga. 333, 335 (2) (806 S.E.2d 573) (2017). "Evidence of gang activity is admissible to show motive even if it incidentally puts defendant's character in evidence." Willoughby v. State, 280 Ga. 176, 178 (3) (626 S.E.2d 112) (2006); see also Wornum v. State, 285 Ga. 168, 169 (2) (674 S.E.2d 876) (2009). The evidence of appellant's gang affiliation consisted of multiple tattoos that, according to the State's expert witness, bear significant similarities to known gang motifs, and co-indictees Cushenberry and Finley also had such tattoos. Additionally, several pieces of paraphernalia associated with the Bloods gang were found during the search of appellant's bedroom.

         As this Court concluded in the opinion affirming Finley's conviction:

Here, evidence that Finley, Cushenberry, Jordan, and Taylor were all involved in a gang was relevant to show the affiliation between the four men and explain the motive of the principals in committing the crimes. The jury could infer that Jordan and Taylor were willing to commit crimes that had been orchestrated by Finley and Cushenberry-and that allowed the unemployed Finley and Cushenberry to continue their weekend of "partying" by living off the spoils of crimes directly committed by Jordan and Taylor- because they all were affiliated with the same gang. It is well established that involvement with a gang may be admissible to show motive, see Mallory v. State, 271 Ga. 150, 153 (6) (517 S.E.2d 780) (1999), and evidence of gang involvement in this case supported the State's theory of how the co-indictees were affiliated and what motivated them to commit the crimes in the way that they did. As a result, the trial court did not err when it admitted evidence of gang involvement. See Willoughby v. State, 280 Ga. 176, 178 (3) (626 S.E.2d 112) (2006).

Finley, 298 Ga. at 453 (2); see also Cushenberry v. State, 300 Ga. 190, 196 (2) (e) (794 S.E.2d 165) (2016). Even the testimony of a close acquaintance of Cushenberry and Finley that these men were not actually gang members, but were simply trying to take on the image of thugs, supported the State's assertion that the evidence of the affiliation of these co-indictees was ...

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