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Stripling v. State

Supreme Court of Georgia

June 29, 2018

STRIPLING
v.
THE STATE. BREWER
v.
THE STATE.

          NAHMIAS, Justice.

         Appellants Tshombe Stripling and Elijah Brewer were convicted of malice murder and other crimes in connection with the shooting death of Khaseim Walton. On appeal, Stripling contends only that the trial court committed plain error by not instructing the jury on the need for accomplice testimony to be corroborated. Brewer contends that the evidence was insufficient to sustain his conviction for criminal street gang activity and that his trial counsel provided ineffective assistance by failing to call an expert on the smartphone application AirDroid. We affirm both appellants' convictions.[1]

          1. (a) Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Walton was a cocaine dealer. Shortly before 9:00 p.m. on November 25, 2013, he drove one of his clients, Gloria Traylor, to a rooming house in the Oakland City area of Atlanta to show her a room that he was planning to rent as a place at which he could sell drugs. As they approached the house, Traylor saw a man she knew as "Chalee" standing outside near a vehicle that looked like a Suburban or a truck. At trial, Traylor identified Talib Smith as Chalee. A short time later, when Walton and Traylor were backing up to leave the house, a man got out of the Suburban-like vehicle, approached the driver's side of Walton's car, and asked to buy some drugs. After Walton prepared the cocaine, there was a struggle between him and the man standing outside the car. Traylor then saw three guns pointed in the driver's side window; she heard shots and ducked down. Walton drove into a pole, and Traylor got out of the car screaming. Walton had been shot four times; he died from his injuries soon after he arrived at the hospital. Traylor could not identify the man who asked to buy drugs or any of the people holding the guns.

         Paul Whibbey, the manager of the rooming house, looked out his window when he heard a commotion around the time of the shooting. He saw four individuals walking toward Walton's car from a black SUV. Whibbey testified that one had short dreadlocks and another had well-kept dreadlocks. At the time of the shooting, Stripling and Talib had twists or dreadlocks; Brewer did not have dreadlocks. Whibbey heard the people saying "get this, get that, get his money." He saw the man with the well-kept dreadlocks shoot a gun and heard eight or nine shots. Then the four individuals got back in the SUV and left. After the shooting, Whibbey was interviewed by Detective Kevin Leonpacher of the Atlanta Police Department, and he identified Neddrick Smith from a photo lineup as the shooter.

         Neddrick, who had dreadlocks, was arrested and interviewed by the police. He denied any involvement in the shooting. He said that he had driven his Kia sedan to the rooming house that day with his brothers, Nemiyas and Nierris Smith, and Monquel Yancey to buy a heater from someone who lived there, but he had driven away from the house and just arrived at his aunt's house nearby when he heard the shots. He jumped back in his car and returned to the rooming house to investigate. He also said that his brother Talib, who some people say looks like him, may have been involved in the shooting.

         Nemiyas and Nierris also were interviewed by Detective Leonpacher, and their interviews were played for the jury after the two brothers testified and said that they did not remember most of what they had said in their interviews. Nemiyas told the detective that when he was outside the rooming house with Neddrick, Nierris, and Yancey before the shooting, he saw Knuckles (Stripling's nickname), Tommy Gunz (Brewer's nickname), Talib, Katrina Shardow, and someone named Pat pull up in a black Jeep and Talib get out. Nemiyas said that all of those people were members of the Bloods gang.[2] Nierris similarly told Detective Leonpacher that he saw five people in a Jeep, including Talib, "Shombe," "Elijah," and a woman; Nierris identified Tshombe Stripling in a photo lineup as being in the Jeep, but did not identify Elijah Brewer in a lineup. About a week before the murder, Shardow had rented a black Jeep Cherokee SUV. Three weeks after the murder, she reported the SUV stolen; the police found it on fire a few minutes later.

         Eleven shell casings were found at the scene of Walton's shooting, and ballistics testing showed that they were fired from at least three and as many as five different .45-caliber guns. One set of shell casings matched casings left by the gun Stripling used in a different shooting nine days after the murder.[3] A cell phone that belonged to Brewer was found in a driveway at the scene. Brewer told his girlfriend that he had dropped the phone when there was a shooting and he ran. Cell phone records showed that Brewer, Stripling, and Talib were in frequent contact and near each other on the day of the shooting, including in Oakland City. About 30 minutes after the shooting, Stripling's phone called Neddrick's phone; Neddrick told Detective Leonpacher that this call was from Talib using Stripling's phone.

         Stripling did not testify at trial, but Detective Leonpacher testified that Stripling had admitted to him in an interview that Stripling was a member of the Bloods. Stripling claimed that he was in a different part of town around the time of the murder, but his cell phone records did not support that assertion. Brewer testified at trial that he was a member of the Nine Trey Bloods and was part of a group that committed credit card fraud for the gang. He also said that Shardow was a member of the gang and Talib was affiliated with the gang. Brewer claimed that earlier on the day of the murder he had been with Talib, Shardow, and others in the black Jeep SUV later seen at the rooming house, but at the time of the shooting he was at a recording studio in a different area of town. Brewer said that he had taken his cell phone to the studio but at some point that night noticed that it was gone; he suspected that someone took it. Although there were three text messages sent from and five messages received by Brewer's phone in the minutes leading up to the shooting, Brewer claimed that after he lost his phone, he sent text messages using an application on the phone called AirDroid, which lets the user take remote control of the phone and send texts through it without actually possessing it.

         (b) Brewer argues that this evidence was legally insufficient under Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), to sustain his conviction for participation in criminal street gang activity, because the evidence did not show a nexus between the alleged criminal acts and gang activity. Brewer was charged with participating in criminal gang activity, in violation of OCGA § 16-15-4 (a), through the commission of at least one of the following offenses: murder, felony murder, attempt to commit armed robbery, and aggravated assault.[4] Proof that "the commission of the predicate act was intended to further the interests of the [gang]" is essential to prove a violation of § 16-15-4 (a). Jones v. State, 292 Ga. 656, 659 (740 S.E.2d 590) (2013). See also Rodriguez v. State, 284 Ga. 803, 807 (671 S.E.2d 497) (2009) (explaining that "there must be some nexus between the act and an intent to further street gang activity" (quotation marks omitted)).

         Brewer admitted that he was a member of the Nine Trey Bloods gang and that he had participated in other criminal activity for the gang. Testimony from Brewer and Detective Leonpacher showed that each of Brewer's co-defendants was in or affiliated with the gang. A gang expert testified that the gang makes most of its money through armed robberies, including robberies of drug dealers like Walton. Other testimony indicated that Walton was seeking to establish a permanent place of business for drug dealing in the Oakland City area, which is where Brewer's gang operates. As a whole, this evidence was sufficient to establish a nexus between the crimes against Walton and an intent to further the interests of the Nine Trey Bloods. See Hayes v. State, 298 Ga. 339, 343 (781 S.E.2d 777) (2016). Furthermore, when viewed in the light most favorable to the verdicts, the evidence was sufficient to authorize a rational jury to find beyond a reasonable doubt that Brewer and Stripling participated in the aggravated assault, attempted armed robbery, and murder of Walton. See Jackson, 443 U.S. at 319. See also OCGA § 16-2-20 (defining parties to a crime); Johnson v. State, 302 Ga. 774, 776-777 (809 S.E.2d 769) (2018) ("[S]hared criminal intent may be inferred from the person's conduct before, during, and after the crime." (citation and quotation marks omitted)); Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009) ("'It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)).

         (c) Although Brewer and Stripling do not dispute the sufficiency of the evidence supporting their other convictions, we have reviewed the record and conclude that the evidence presented at trial and summarized above was also sufficient to authorize a rational jury to find the appellants guilty beyond a reasonable doubt of those crimes.

         2. Stripling's only contention on appeal is that the trial court committed plain error by failing to instruct the jury under OCGA § 24-14-8 that the testimony of an accomplice must be corroborated to establish a fact.[5]

          Because Stripling did not request this instruction at trial,

his claim is reviewed on appeal only for plain error, meaning that we will reverse the trial court only if the [alleged] instructional error was not affirmatively waived . . ., was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the ...

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