Chavers v. State

• Decision Date: 22 January 2019
• Docket Number: S18A1236
• Parties: CHAVERS v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 887

823 S.E.2d 283

CHAVERS

v.The STATE.

S18A1236

Supreme Court of Georgia.

Decided: January 22, 2019

David Joseph Walker, GEORGIA PUBLIC DEFENDERS STANDARDS COUNCIL, APPELLATE DIVISION, 201 Second Street, Suite 550, Macon, Georgia 31201, Attorney for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Jason Matthew Rea, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Bradford Lee Rigby, District Attorney, CORDELE JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, PO Box 5510, Cordele, Georgia 31010, Attorneys for the Appellee.

Warren, Justice.

Rocquel Quinton Chavers was convicted of malice murder, violation of the Georgia Street Gang Terrorism and Prevention Act, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon in connection with the shooting death of Jasperin Armstrong.¹ On appeal, Chavers contends that the evidence was insufficient to sustain his conviction for violation of the Street Gang Act, that the trial court erred by allowing certain testimony over a hearsay objection, and that Chavers’s trial counsel rendered ineffective assistance by failing to object to certain other testimony as hearsay. We disagree and affirm.

1. Viewed in the light most favorable to the jury’s verdict, the evidence presented at trial showed the following. Jasperin Armstrong was found dead by a passerby on the side of a road around 10:45 a.m. on September 12, 2014. Blood-spatter evidence and the condition of Armstrong’s body led a GBI crime-scene specialist to determine that the body had been on the road for a significant period of time, and a GBI medical examiner concluded that Armstrong had been shot at least several hours before discovery of his body. When police later searched Armstrong’s bedroom, they recovered printed gang rules, and his girlfriend verified that Armstrong was a member of the "Rollin’ 20s" gang, a division of the Bloods. Investigators also recovered messages from the gang’s Facebook group that included Armstrong, Chavers, co-indictee Rontavious Towns, and other members of the Rollin’ 20s gang including Hassan Taylor. Towns was a leader of the gang in Cordele, Georgia, and Chavers was his superior: the head of the Rollin’ 20s in Georgia. Armstrong’s first cousin, Jacquese Hicks, was in a different gang and, when members of the two gangs played a basketball game earlier that summer, a fight between the gangs broke out after Hicks elbowed Taylor, cutting his eye. But instead of fighting with his gang against his rival gang—which included his cousin—Armstrong tried to break up the fight.

After the fight, messages posted to a Rollin’ 20s Facebook group criticized Armstrong’s failure to fight and warned about Chavers imposing consequences. In addition, Taylor, who had been injured in the basketball game, later had a conversation with Towns, who called Chavers on speaker phone. Chavers told Taylor that they had to stick together, said how Armstrong "went out bad," and remarked that "somebody’s got to die." Another time, Chavers told Towns to enforce the gang rules and "to start taking [violators] to a dark spot and just kill[ ] them and have somebody there with [him] that [he] trust[ed]." Afterwards, Towns remarked that Chavers was "crazy."

Another Rollin’ 20s gang member, co-indictee Shaquille Jackson—who had participated in the basketball-related fight despite having a broken hand—lived with Shameria Little in her apartment and occasionally met there with other gang members. At one meeting four days before Armstrong was murdered, Jackson, Towns, Kelvy Henton, and another man were present. Little overheard them comment that Armstrong would not fight his cousin and heard them say that somebody was "on the plate" and "going to get ate." At trial, a gang expert testified that somebody who is "on the plate" and "going to get ate" is a targeted person who is going to be beaten or killed. On another occasion, Armstrong told Little that Towns was mad at Armstrong.

From September 10 to 12, 2014, Towns and Chavers made 45 phone calls to each other. On September 11, 2014, Jackson told another gang member that Armstrong "doesn’t know how real the s*** is about to get." That evening, Chavers and co-indictee Andreika Harper drove from Bainbridge to Cordele in Harper’s car and stopped in the parking lot near Little’s apartment. Jackson and Towns talked to Chavers in the parking lot about Armstrong’s failure to participate in the fight. Between 10:30 p.m. and 11:00 p.m., Armstrong—who had previously told his girlfriend that he was supposed to meet Chavers—got a ride from his mother, who dropped him off near the parking lot by Little’s apartment. After Armstrong walked up to the group, Chavers said that everyone had been waiting for Armstrong and that Armstrong was going to take a ride with Chavers and Harper in Harper’s car. After Chavers, Harper, and Armstrong left, Jackson told Henton that Chavers was "talking crazy, he’s talking about killing [Armstrong]."

While driving, Chavers asked Armstrong why he had not participated in the fight with his fellow gang members and why he had missed gang meetings. After several minutes, Chavers stopped in the road and asked Armstrong to get out of the car to help him find something. After the two exited the car, Harper saw Armstrong standing on the side of the road and Chavers appearing to look for something. She then heard a loud noise and saw a flash. Chavers got back into the car by himself and asked Harper if she was okay. He told her that she could not tell anyone about what happened, that Armstrong said "don’t kill me, man," and that Chavers tried to fire a second time but the gun jammed. As Chavers and Harper drove back to Bainbridge, Chavers called Towns and told him the "job had been done." Chavers threw the gun into the river in Bainbridge, and he and Harper spent the night in a motel.²

Chavers testified at trial. He admitted that he was the highest ranking member of the Rollin’ 20s gang in Georgia; that he and Harper picked up Armstrong; and that he talked to Armstrong about the gang and the difficulties Armstrong was having with other members. However, Chavers also testified that on the night of September 11, 2014, he dropped Armstrong off on the side of a road by a cemetery. Chavers insisted that he never participated in the alleged phone conversation with Taylor; never told Taylor that somebody "had to die"; and never told Towns "to take [violators] to a dark place and take care of business."

2. Chavers contends that the evidence was insufficient to prove his guilt of conspiracy to commit murder and, therefore, was also insufficient to support his conviction for violation of the Street Gang Act because that violation was predicated on the conspiracy offense.

As an initial matter, Chavers’s guilty verdict for conspiracy was merged into his malice murder conviction, see OCGA § 16-4-8.1, so he "was not sentenced for that crime, and no judgment of conviction as to that crime was entered against him." Faust v. State , 302 Ga. 211, 213 n.3, 805 S.E.2d 826 (2017). Chavers’s claim regarding the sufficiency of the evidence of conspiracy to commit murder is therefore moot. See id. ; see also Anderson v. State , 299 Ga. 193, 196 n.4, 787 S.E.2d 202 (2016).

Chavers, however, also challenges the sufficiency of the evidence to support his conviction for violation of the Street Gang Act predicated on the conspiracy offense, and we review the sufficiency of the evidence to support that conviction because it does not merge. To that end, Chavers was charged in the indictment with violating the Street Gang Act by participating in criminal street gang activity "through the commission of the offense of Conspiracy to Commit the Offense of Murder" while associated with the Rollin’ 20s gang. To prove a violation of the Street Gang Act in this way, the State was required to show that Chavers was, in fact, associated with the Rollin’ 20s, that the Rollin’ 20s was a "criminal street gang," that Chavers committed a predicate act of "criminal street gang activity"—namely, the conspiracy to commit Armstrong’s murder, and that the commission of the predicate act was intended to further the interests of the Rollin’ 20s. See OCGA §§ 16-15-3 (1) (J), 16-15-4 (a) ; Jones v. State , 292 Ga. 656, 659, 740 S.E.2d 590 (2013). Only one of these requirements is the subject of this enumeration; Chavers’s sole contention is that the State failed to prove that he conspired with his co-indictees to murder Armstrong.

It is true that "a defendant cannot be convicted for merely being associated with a gang that commits criminal acts; the defendant must personally commit an enumerated offense himself." Giddens v. State , 299 Ga. 109, 111-112, 786 S.E.2d 659 (2016) (citation omitted). See also Rodriguez v. State , 284 Ga. 803, 810, 671 S.E.2d 497 (2009) ("To support a conviction, the accused must be shown to have conducted or participated in criminal street gang activity through the commission of ‘an actual criminal act. Mere association is insufficient.’ " (citation omitted) ). And OCGA § 16-4-8 provides that "[a] person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy." Chavers argues that the State failed to prove his guilt of conspiracy to commit Armstrong’s murder because, according to Taylor’s testimony about his phone call with Chavers and Towns, Chavers never said who "had to die" and he therefore could have been referring to someone in the rival gang (not Armstrong); because Taylor was on felony probation, giving him an incentive to provide testimony favorable to the State; because Chavers denied participation in the alleged conversation...