Cushenberry v. State

• Decision Date: 21 November 2016
• Docket Number: S16A1039
• Parties: CUSHENBERRY v. The STATE.
• Court: Georgia Supreme Court

300 Ga. 190

794 S.E.2d 165

CUSHENBERRY

v.The STATE.

S16A1039

Supreme Court of Georgia.

Decided: November 21, 2016

Sandra G. Dawson, The Law Office of Sandra Dawson, LLC, 166 Anderson Street, Suite 100, Marietta, Georgia 30060, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Elizabeth Michelle Haase, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Brian Keith Fortner, District Attorney, Douglas County District Attorney's Office, 8700 Hospital Drive, 3rd Floor, Douglasville, Georgia 30134-2264, Ryan Reese Leonard, Senior A.D.A., Douglas County District Attorney's Office, 8700 Hospital Drive, Second Floor, Douglas County Courthouse, Douglasville, Georgia 30134, Emily Kathleen Richardson, A.D.A., Douglas County District Attorney's Office, 8700 Hospital Drive, 2nd Floor, Douglasville, Georgia 30134, for Appellee.

NAHMIAS, Justice.

Appellant Christopher Cushenberry challenges his convictions for felony murder and conspiracy to commit armed robbery in connection with the shooting death of Javarus Dupree. We affirm.¹

1. (a) Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On May 11, 2010, Appellant and co-indictees Henry Finley, James Jordan, and Brandon Taylor were together on and off throughout the day. During the times they separated, they stayed in nearly constant contact by phone. Appellant, who had spent all of his money partying the night before, told several people that he was planning to "goon[ ] out" and "hit some licks," slang terms for committing a robbery. To that end, Appellant had guns, and he and his co-indictees were actively seeking someone to rob.

At some point during the day, Dupree was selected as the victim. Around 3:00 p.m., Appellant and Jordan contacted Dupree, ostensibly to purchase marijuana. Once Dupree agreed to meet, Appellant and his three co-indictees drove together in Jordan's Cadillac to a gas station, where Jordan and Taylor left the vehicle and got into Dupree's car. Appellant and Finley then drove the Cadillac to the home of Finley's father, which was within walking distance of the apartment complex where the planned robbery was to take place.

Witnesses saw Dupree's car pull into the parking lot of the apartment complex's poolhouse, heard a single gunshot, and saw two men, who matched the descriptions of Jordan and Taylor, jump out of the car and run away in the direction of Finley's father's home, where Appellant and Finley were waiting. After Jordan and Taylor met up with Appellant and Finley, Appellant and Jordan argued; Jordan then drove away alone in his Cadillac. Shortly thereafter, Finley's father drove the three remaining men to a nearby mall. Appellant, Finley, and Taylor walked through the mall but left within minutes, as Finley's girlfriend picked them up and then dropped them off at their respective homes. That evening, Appellant told an acquaintance about the events of the day, saying that he and the others needed money, so they planned and attempted the robbery of Dupree.

After Dupree was shot in his car, his foot remained on the accelerator, causing the car to catch fire. A passerby pulled Dupree out of the car, and he was taken to a hospital, where he later died from a gunshot wound to the head. The police found a cell phone linked to Taylor lying outside the front passenger side of Dupree's car. Phone records showed numerous calls between the victim and Appellant and Jordan in the hours before the murder.

At trial, to help prove the motive and association of the co-indictees, the State presented the following evidence indicating their association with the Bloods gang: a red cap and bandanna found in Jordan's and Taylor's residences, respectively; MySpace photos of Appellant and others making gang signs; pictures of the gang-related tattoos of Appellant and his co-indictees; images from album covers and tattoos of Lil Wayne, a self-proclaimed Bloods member, which were similar to Appellant's and his co-indictees' tattoos; testimony from witnesses who heard Appellant yell "CTB," which means Cross the Track Boys, a gang affiliated with the Bloods; Appellant's statements to the police that Jordan was associated with Young N Thugging, another gang affiliated with the Bloods, and that Jordan committed the attempted robbery of the victim for "stripes" (meaning credibility or ranking in a gang); and expert testimony about the gang evidence.

Appellant testified at trial that he had been drinking and partying during the night before and continued to drink throughout the day of the shooting. He acknowledged being with his three co-indictees during the day, said that they talked about "thugging," and claimed that Jordan decided to rob someone but he did not want to be a part of the robbery. Appellant said that he had contact with the victim that day only to buy marijuana and that Jordan was solely responsible for the shooting.

(b) Appellant contends that the trial court erred in denying him a directed verdict of acquittal on all charges, asserting that the evidence at trial was insufficient to support his convictions because the State did not prove beyond a reasonable doubt that he was a party to the charged crimes under OCGA § 16-2-20.

Pursuant to OCGA § 16-2-20 (b), a person may be convicted of commission of a crime even if he or she does not directly commit the crime but, instead, "[i]ntentionally aids or abets in the commission of the crime; or ... [i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime." ... "[W]hether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed."

Flournoy v. State, 294 Ga. 741, 745, 755 S.E.2d 777 (2014) (citations omitted). See also Butts v. State, 297 Ga. 766, 770, 778 S.E.2d 205 (2015) ( " ‘All participants in a plan to commit robbery are responsible for the criminal acts that are a probable consequence of the plan and are committed while executing it.’ " (citation omitted)).

Appellant admitted at trial that he was aware of the plan to rob Dupree, and the jury was entitled to disbelieve his testimony that he did not want to participate in the robbery. See 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)). Other evidence at trial showed that Appellant was with Jordan, Taylor, and Finley just before and shortly after Dupree was killed, that Appellant and Jordan both expressed their intention to rob someone, that Appellant needed money and had guns, that Appellant and Jordan contacted Dupree to arrange a purported drug deal, and that Appellant admitted that evening that he and his co-indictees had planned and executed the attempted robbery that resulted in Dupree's death. Thus, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt as a party to the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Butts, 297 Ga. at 769–771, 778 S.E.2d 205 ; Flourn o y, 294 Ga. at 746, 755 S.E.2d 777 ; Ellis v. State, 292 Ga. 276, 278–279, 736 S.E.2d 412 (2013).

2. Appellant raises several enumerations of error regarding gang-related evidence that was provided to the defense shortly before trial. Eleven days before Appellant's trial started, the State gave Appellant's counsel booking photographs of Appellant and Finley and identified as a witness Sergeant Jesse Hambrick, a supervisor in the Criminal Investigations Division of the Douglas County Sheriff's Office who is responsible for gang intelligence. On the following day, ten days before trial, the State gave Appellant's counsel documents regarding an examination of the tattoos on Appellant's and Finley's faces that noted their similarity to tattoos on self-proclaimed Bloods gang member Lil Wayne.

On the Thursday before trial, the sheriff's office executed search warrants to photograph any other tattoos on Appellant and Finley and all of the tattoos on Jordan and Taylor. The next day—the Friday before trial—the prosecutor received the additional photographs of Appellant's tattoos from the sheriff's office and filed a notice of discovery, which included the photographs of Appellant and related pictures of Lil Wayne, with the trial clerk's office at 10:39 a.m. That afternoon around 4:45 p.m., the prosecutor hand-delivered to Appellant's counsel a compact disc with these photographs. Appellant's counsel had a problem accessing the contents of the disc, however, and she was unable to view the pictures until the Monday morning that trial began. That morning, the prosecutor provided additional discovery, which included, in pertinent part, a video of Appellant's tattoos being photographed, the photographs of the co-indictees' tattoos, and copies of photographs from the MySpace pages of Appellant and others.

After the jury was selected, Appellant's counsel argued to the court that she was unable to effectively assist Appellant because she had no opportunity to review and prepare to rebut the evidence provided on Friday and that morning, and she moved to exclude the evidence or to continue the trial. The trial court denied both motions, but offered Appellant's counsel an opportunity to interview the State's gang expert, Sergeant Hambrick, about his expected testimony regarding this gang evidence. The court pointed out that Sergeant Hambrick was local, and the State agreed to make him available to the defense. This exchange took place seven days before Sergeant Hambrick testified in what turned out to be a ten-day trial.

(a) Appell...