Kennebrew v. State

• Decision Date: 31 October 2016
• Docket Number: S16A0844
• Citation: 299 Ga. 864,792 S.E.2d 695
• Parties: KENNEBREW v. The STATE.
• Court: Georgia Supreme Court

299 Ga. 864

792 S.E.2d 695

KENNEBREW

v.The STATE.

S16A0844

Supreme Court of Georgia.

Decided: October 31, 2016

Kevin Alan Anderson, Tyler Reid Conklin, for Appellant.

Robert D. James, Jr., Dist. Atty., Charles A. Spahos, Gary D. Bergman, Lalaine A. Briones, Asst. Dist. Attys., pro tempore, Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Matthew B. Crowder, Asst. Atty., Gen., for Appellee.

NAHMIAS, Justice.

Appellant Phillip Kennebrew was found guilty of malice murder, armed robbery, and other crimes in connection with the death of Breyon Alexander. In Babbage v. State, 296 Ga. 364, 768 S.E.2d 461 (2015), we affirmed the convictions of Mason Babbage and Samuel Hall, who were tried together with Appellant, rejecting their claims of ineffective assistance of counsel. However, each defendant had his own attorney at trial, and Appellant—unlike Babbage and Hall—has shown that his trial counsel was professionally deficient in two significant respects and that, but for those errors, there is a reasonable probability that the result of the trial would have been more favorable to him. Accordingly, we reverse Appellant's convictions, although we find that the evidence presented at trial was legally sufficient to support the convictions, so the State may retry him if it chooses.¹

1. As explained in Babbage, when viewed in the light most favorable to the verdicts, the evidence at trial showed the following.

Around midday on October 18, 2011, Marvin Evans heard a loud noise from the back of his second floor DeKalb County apartment. From his balcony, Evans observed a white Chevrolet Malibu with its back side facing the apartment building. Evans saw two light-skinned black men, one beside the car and the other, whose hair was worn in dreadlocks, running toward the car. Proceeding downstairs to investigate, Evans passed a bald, light-skinned black man coming up the stairs. At trial, Evans identified Hall as the man he passed on the stairs.

In the downstairs apartment, Evans discovered the victim hogtied and bleeding, with several teeth knocked out of his mouth. The apartment had been ransacked. Evans called 911. Though conscious when Evans discovered him, the victim died from his injuries soon thereafter. His injuries included both blunt and sharp force injuries, consistent with having been stabbed and beaten with the butt of a gun. A knife was found in the apartment's patio area.

There were no signs of forced entry into the apartment, from which numerous items of electronic equipment, firearms, and a large sum of cash had been taken. Among the stolen items were a 50–inch flat screen television, a 42–inch television, a 12–gauge shotgun, two laptop computers, two Playstation gaming systems, an Xbox gaming system, a .40 caliber Smith and Wesson handgun, two .380 caliber handguns, and three other guns. The victim's roommate testified that the victim sold drugs from their apartment and for this reason was always careful about whom he allowed inside.

As of the time of the crimes, Babbage had known the victim for six to seven years. Babbage had stayed in the victim's apartment the week prior to the crimes, had been in the apartment many times, and knew that there were guns, money, and marijuana there. Babbage had sold a 50–inch TV to the victim a few weeks prior, and there was testimony that Babbage had recently demanded the victim sell it back, a demand the victim had refused. A search of Babbage's home uncovered a pair of black pants, identified as belonging to Babbage, bearing blood stains matched to the victim and DNA matched to Babbage. Babbage's wife owned a white Chevrolet Malibu, and there was evidence that Babbage had driven that vehicle on the morning of the crimes. A search of the Malibu uncovered fingerprints on the exterior of the front passenger side door belonging to Hall, a friend of Babbage.

Hall's girlfriend, Erin Tew, testified that, on the day before the crimes, she had overheard a telephone conversation on speaker phone between Hall and Babbage, in which they discussed "hitting a lick" on a man who had molested Babbage's niece and who had guns and drugs. The State established that, at the time of the murder, the victim was under indictment for child molestation.

A search of the home Hall shared with his girlfriend uncovered a 12–gauge shotgun, a .380 caliber handgun, 12–gauge shotgun shells, and .38 caliber live rounds. In the backyard of the home, investigators also discovered a makeshift barbeque grill containing ashes and charred clothing remnants. The son and daughter of Hall's girlfriend, who also lived in the home, testified that when they returned home from school on the day of the crimes, Hall, Babbage, and an unknown third man had "cool" electronic equipment at the house, which Babbage loaded into his car the following day. They also testified that on the same day Babbage and Hall had cut off their hair and all three men had used the backyard grill to burn clothing.

Tew testified that, on the day of the crimes, she received two text messages from Hall, the first stating, "I think we f**ked up," and the second stating, "I think we killed somebody." Immediately thereafter, she received electronic photographs showing a sink full of dreadlocks and Hall, who, though previously having worn dreadlocks and full facial hair, was now bald and clean-shaven. On the evening of the crimes, Tew testified, Hall told her that "it wasn't even worth it" and that "he didn't even get anything."

A cigarette butt recovered from the victim's apartment was determined to bear the DNA of [Appellant]. [Appellant's] girlfriend testified that, on the morning of the crimes, she had driven [Appellant] to meet Babbage, who was driving a white Chevrolet. [Appellant's] girlfriend also testified that when she saw him later that day he was wearing different clothes than he had been wearing in the morning. During the investigation, a search uncovered live .40 caliber Smith and Wesson rounds and 12–gauge shotgun rounds, as well as a knife, in backpacks belonging to [Appellant].

Cell phone records revealed that, on the day of the crimes, 15 separate text or voice communications took place between Babbage's cell phone and Hall's cell phone. Six of these communications, which occurred during a 36–minute period around the time of the crimes, were transmitted via the cell tower servicing the area of the victim's apartment. The phone records also showed seven communications between Babbage's cell phone and [Appellant's] cell phone from that morning.

Babbage, 296 Ga. at 364–366, 768 S.E.2d 461.

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 for which he was found guilty. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; 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)). See also OCGA § 16–2–20 (defining parties to a crime); Charleston v. State, 292 Ga. 678, 680–681, 743 S.E.2d 1 (2013) (explaining that participation in a crime may be inferred from association prior to, during, and after the crime). We note with respect to the discussion in Division 2 below that in determining the legal sufficiency of the evidence, we consider all of the evidence that was admitted at Appellant's trial, even though some of the evidence should have been excluded. See Cowart v. State, 294 Ga. 333, 343, 751 S.E.2d 399 (2013). See also McDaniel v. Brown, 558 U.S. 120, 131, 130 S.Ct. 665, 175 L.Ed.2d 582 (2010) (" ‘[A] reviewing court must consider all of the evidence admitted by the trial court,’ regardless of whether that evidence was admitted erroneously." (citation omitted)).

2. Appellant contends that his trial counsel, Maurice Kenner, provided constitutionally ineffective assistance of counsel. To prevail on this claim, Appellant must show both deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficient performance, Appellant must prove that his counsel acted or failed to act in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687–690, 104 S.Ct. 2052. To show resulting prejudice, Appellant must demonstrate that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

(a) Appellant identifies two omissions by Kenner that he contends were not the result of reasonable professional judgment. We agree.

(1) Appellant points first to Kenner's failure to seek suppression of the evidence recovered from Appellant's backpacks. Appellant's DNA was found on a cigarette butt at the crime scene, and this evidence, along with witness testimony, clearly placed Appellant at the victim's apartment at the time of the crimes. Given this evidence, Kenner, in consultation with Appellant, decided to pursue a mere presence/mere association defense, arguing at trial that Appellant went to the apartment with Babbage and Hall simply to sell the victim a PlayStation, that Hall unexpectedly went crazy and viciously beat and stabbed the victim to death, and that Appellant then fled the apartment.

This defense had its weaknesses—Appellant was associated with Babbage during the morning before the crimes, was present with Babbage and Hall during the murder, and (inferentially) was the third man present with Babbage and Hall and apparent robbery proceeds later in the day at Hall's house. See Charleston, 292 Ga....