Hurston v. State

• Decision Date: 15 February 2021
• Docket Number: S20A1223
• Court: Georgia Supreme Court
• Parties: HURSTON v. The STATE.

310 Ga. 818

854 S.E.2d 745

HURSTON

v.The STATE.

S20A1223

Supreme Court of Georgia.

Decided: February 15, 2021

Matthew K. Winchester, for appellant.

John H. Cranford, Jr., District Attorney, John C. Winne, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Kathleen L. McCanless, Assistant Attorney General, for appellee.

Nahmias, Presiding Justice.

Appellant Kelvin Hurston and his co-defendant Dextreion Shealey were convicted of felony murder and other crimes in connection with the gang-related shooting death of Daven Tucker. In this appeal, Appellant contends that the trial court violated his constitutional right to be present during his trial and that his trial counsel provided ineffective assistance by failing to request a ruling on his motion to sever his trial from Shealey's, failing to request a ruling on his motion to suppress evidence derived from a search warrant, failing to request a jury instruction on accomplice corroboration, and failing to request a proper limiting instruction on other acts evidence. All of these claims are meritless, so we affirm.¹

1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's

trial showed the following. On the evening of December 17, 2016, Appellant (who was then 16 years old and known as "K.J."), Shealey, Charles Lovelace, Shawndarious Sands, Coty Green, Natori Lee, Lee's brother Kouri, Dantavious Rutledge, Zachary Holloway, Andre Gilliam, and Essence Todd – all of whom were connected to a criminal street gang from West Point called "4way" – attended a memorial celebration for a friend who had died.² After the memorial, the group and a few other people decided to go to LaGrange. Appellant rode there in Todd's Hyundai Sonata, and the others drove in a caravan of cars that included Shealey's Ford Mustang and Green's Honda Accord. Appellant and a few others in the caravan stopped at a gas station in LaGrange before proceeding to a nearby public housing complex. A surveillance video recording of the complex's parking lot showed that Todd's Sonata and the other cars in the caravan were at the complex from 9:53 to 9:59 p.m.

According to Green, there was an ongoing "beef" between 4way and a LaGrange group called "Mob," and the people in the caravan decided to drive to Granger Park to see if any people associated with Mob were hanging out there. Surveillance video recordings from the park showed that at 10:03 p.m., Todd's Sonata and the rest of the caravan of cars entered a parking lot where dozens of people had gathered. According to several witnesses who were in the park, gunshots rang out from some of the cars in the caravan. Todd saw Appellant, who was sitting in the back seat of her car, shoot into the parking lot. Holloway, who was also sitting in the back seat, saw Appellant use a big, black, MAC-style nine-millimeter gun to shoot. Another witness in the park heard return fire from some of the people in the parking lot.³ The park surveillance video showed that the caravan left as people in the parking lot ran away. Investigators later found 39 shell casings in the parking lot, including 13 nine-millimeter shell casings. Remarkably, no one was injured during the shooting.

The surveillance video from the housing complex showed that at 10:07 p.m., Todd's Sonata and the rest of the caravan returned to the complex's parking lot. Shealey's Mustang had a bullet hole in the passenger door, and according to several members of the caravan, Shealey was angry because his car had been hit. Kouri received information that Mob members had shot at the caravan; he relayed that information to the group at the housing complex, and Green said that he knew the location of a house where some Mob members lived. Shealey suggested that they go to the house, which was on Newnan Street, saying, "Somebody's got to pay. My car just got shot," and "What y'all want to do? Somebody's got to get it." Green testified that he, Appellant, Shealey, Lovelace, Sands, Lee, and Kouri planned to "shoot ... up" Daven Tucker's house – the house on Newnan Street – because Tucker was a member of Mob. Appellant rode in the Sonata with Sands, Rutledge, and Holloway, while Shealey, Green, Lovelace, Lee, and Kouri rode in Green's Accord.⁴

The Sonata and the Accord parked near Newnan Street, and Appellant, Green, Lovelace, and Sands got out of the cars. Green testified that he had a .40-caliber gun; Appellant had a big, black MAC-11 handgun; Lovelace carried a nine-millimeter gun or a .380 pistol; and Sands carried a nine-millimeter gun.⁵ Green testified that he, Appellant, Lovelace, and Sands started shooting toward the house. Green shot once and then got back in the Accord as the three other men continued to shoot. Green and Lee heard return gunfire from the direction of the house.⁶ Appellant and Sands got back in the Sonata, and Lovelace got in the Accord. Rutledge and Holloway, who each remained in the Sonata during the shooting, testified that after Appellant got back into the car, he said that he had "performed," which Rutledge understood to mean that Appellant had fired his gun. Both cars then fled.

Tucker, who had been in the front yard of his house, was shot once in his chest. Emergency responders arrived minutes later, around 11:00 p.m., and took Tucker to a hospital, where he soon died from the gunshot wound. Investigators later found 34 nine-millimeter shell casings, five .380 shell casings, and one .40-caliber shell casing at the scene.

Appellant and the other eight 4way members and associates eventually went to a motel in Alabama. Rutledge testified that later that night, Appellant said, "I killed the n**ger." Green, Lovelace, and Kouri were arrested at the motel the next day.⁷ In Green's Accord, investigators found Green's .40-caliber gun, an empty box for nine-millimeter bullets, a nine-millimeter bullet, and a plastic tray used to hold ammunition. Appellant's gun was never recovered.⁸

In February 2017, investigators interviewed Appellant's 14-year-old girlfriend Ashanti Daniel. The interview was video recorded, and the recording was later played for the jury. Daniel told investigators that Appellant had said that he was involved in a shooting and that he "killed the dude." Appellant was arrested on February 24.

A few days before his trial began, during a recorded phone call that Appellant made from jail to two unidentified people, Appellant said that someone should "jump" Daniel. In addition, the State presented evidence that on the morning of the murder, Sands sent Appellant a Facebook message asking, "You got the Tec?" Appellant responded, "Yeah." Sands then asked about a pistol, and Appellant said that it had been traded. The State also presented evidence under OCGA § 24-4-404 (b) that about three months before the murder, Appellant sent Facebook messages to an unknown person, asking to borrow a gun to "shoot somebody[’s] house up."

Appellant and Shealey did not testify. Appellant's theory of defense was that he was not a gang member, was not involved in the shootings, and was being set up by the 4way members who had taken plea deals.

Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's waning practice in murder cases, we have reviewed the record and conclude that, 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 of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also OCGA § 16-2-20 (defining parties to a crime); Shealey v. State , 308 Ga. 847, 850, 843 S.E.2d 864 (2020) ("It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence." (citation and punctuation omitted)).⁹

2. Appellant contends that his right under the Georgia Constitution to be present during

all critical stages of the criminal proceedings against him was violated when he was excluded from a conference room meeting during which the trial court questioned Daniel about whether she would testify at trial. Because Appellant acquiesced to his absence from the meeting, this claim fails.

(a) When one prosecutor called Daniel to testify during the trial, the other prosecutor immediately asked the court if counsel could approach the bench. After a bench conference, which was not transcribed, the court asked the jury to leave the courtroom. The jury left; Appellant (and Shealey) remained. A prosecutor then said that Daniel was in the hallway outside the courtroom but refused to come in to testify because she was "scared." The prosecutor suggested that Daniel was unavailable to testify because she was intimidated by the jail call during which Appellant said that someone should "jump" her, and the prosecutor argued that the video recording of Daniel's interview with investigators should be admitted into evidence under OCGA § 24-8-804 (b) (5).¹⁰ Appellant's trial counsel agreed that the recording of the interview should be admitted. The trial court said that it first needed to determine whether Daniel was unavailable, and that "we need to get her in here and get her on the stand and I need to ask her if she's going to testify." A prosecutor asked if the court could do that in chambers, and the court told the prosecutors to bring Daniel into a conference room. The prosecutor said that Daniel's mother should also come in to "testify to how scared [Daniel] is." The court replied, "All right," and told the lawyers and the court reporter to come into the conference room.

At the beginning of the conference room meeting, which was transcribed, the trial court said that it, the two prosecutors, Appellant's counsel,...