Lupoe v. State
| Decision Date | 21 November 2016 |
| Docket Number | S16A1261,S16A1263,S16A1262 |
| Parties | LUPOE v. The STATE. Williams v. The State. Carter v. The State. |
| Court | Georgia Supreme Court |
Deborah Lorraine Leslie, The Leslie Group, LLC, 186 North Avenue, Suite 107, Jonesboro, Georgia 30236, for Appellant in S16A1261.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Elizabeth A. Baker, Deputy Chief A.D.A., Tracy Graham Lawson, District Attorney, Kathryn L. Powers, A.D.A., Clayton County District Attorney's Office, Harold R Banke Justice Center, 9151 Tara Boulevard, Fourth Floor, Jonesboro, Georgia 30236, for Appellee in S16A1261 and S16A1263.
Stanley W. Schoolcraft, III, Office of the Public Defender, 289 Jonesboro Road, Suite 245, McDonough, Georgia 30253, for Appellant in S16A1262.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Elizabeth A. Baker, Deputy Chief A.D.A., Tracy Graham Lawson, District Attorney, Clayton County District Attorney's Office, Harold R Banke Justice Center, 9151 Tara Boulevard, Fourth Floor, Jonesboro, Georgia 30236, for Appellee in S16A1262.
Viveca Burns Famber, Viveca R. Famber Powell, Attorney at Law, 3961 Floyd Road, Suite 300—172 Austell, Georgia 30106, for Appellant in S16A1263.
Larry Lupoe, Kyshawn Williams, and Jacobey Carter were found guilty at trial of the malice murder of Tavares Moses, the aggravated assault and armed robbery of Carlos Wilson, the aggravated assault of Deandre Miller and Jumario Booker, and related crimes. We affirm the three appellants' convictions, but we have identified merger errors in sentencing that require vacating their sentences in part and remanding for resentencing.1
1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. According to Wilson and Booker, in July 2012, Moses, Wilson, and Miller were staying at the Home Lodge in Clayton County while their landlord repaired their apartment, and they were selling drugs out of their room. Booker occasionally came to visit them, and he was there on the night of the crimes. On July 31, the men changed rooms, and they were checking into Room 105 when they encountered a group of three women, later identified as Quandala Kilgore, Sierra Gilliam, and Parris Stready, and a man, later identified as Lupoe, in the lobby. One of the women offered them sex for money and gave them her phone number. Later that day, the women came to their room, again seeking to negotiate a prostitution transaction. When a price could not be agreed on, the women became angry and left. In Room 105, the victims had a shoebox containing drugs, some counterfeit money, and iPhones. The women returned several times during that day and the next, including the next night around midnight. During that visit, Brenton Carson, who also testified, was visiting the victims, sitting at a table in the room with his gun in plain view. The women left, and Carson then left.
Some time later, the women returned to Room 105. One of them knocked on the door, and when Miller opened it, three men rushed into the room. The intruders' faces were covered, at least two by hockey masks, and at least two of them had guns. The first man who came through the door began shooting towards Moses, who was sitting at the table with Booker. Another intruder approached Wilson, who was lying on the bed, pointed a gun at him, demanded money, and took his money and car keys. The intruders also took the shoebox. The men and women then fled. The victims were unable to identify any of the intruders, but Wilson identified Gilliam, and Booker identified all three women in photographic lineups.
Kilgore, Gilliam, and Stready testified pursuant to plea agreements with the State.2 They corroborated Booker's and Wilson's testimony that they were working as prostitutes at the Home Lodge and that they tried to negotiate their services with the victims. Lupoe was staying with the women and serving as their pimp. According to the women, the victims refused to pay their price, so Kilgore, who was leading the negotiations, became angry. When the women returned to their room, Kilgore told Lupoe that they should rob the victims because the victims were being rude and disrespectful. She also told Lupoe that the victims had drugs, money, and iPhones. Lupoe and Kilgore formulated a plan for the women to go to the victims' room to "get them comfortable" before the robbery. Lupoe then called Williams and Carter, telling them that he had a robbery he needed help with. Williams and Carter arrived at the motel about 30 minutes later.
The women did not know the two men, but Gilliam heard one of them called Carter, and Lupoe introduced them to Kilgore as Carter and "K." Stready later identified Williams in a photographic lineup, and Kilgore and Gilliam identified all three appellants in court. When Williams and Carter arrived at the Home Lodge, Lupoe greeted them with a special handshake that Kilgore, who had known Lupoe for about a year, had seen him use with other people from the Pittsburgh neighborhood of Atlanta that he had identified as Jack City gang members. Lupoe had told Kilgore that he was a member of the gang; he had a jacket with a Jack City logo on it; and Kilgore heard Williams and Carter identify themselves as Jack City members. Lupoe told Williams and Carter about the plan to rob the victims, but the robbery did not occur that night, because the victims were not answering the phone.
The next night, August 1, Williams and Carter returned to the Home Lodge. Kilgore, Gilliam, and Stready went back to Room 105 to "scope out the scene," including the location of everyone in the room and if anyone had weapons. The women saw a man at the table with a gun, and Kilgore told him to put it away because Gilliam and Stready were scared of it. After ostensibly agreeing on a price for their services, the women returned to their room, informing the appellants that one of the men in the room had a gun. Williams said that would not be a problem because they had their own guns; he then left the room and returned with two hockey masks and two guns, which Williams and Carter kept. Shortly before 3:00 a.m. on August 2, the three women returned to Room 105. Stready called the appellants, who were following closely behind, so they could hear what happened when the women arrived at the room. One of the women knocked on the door; after it was opened, the appellants rushed in. Williams and Carter wore the hockey masks, and Lupoe covered his face with a red bandanna. Williams, who was first through the door, began shooting as he entered the room. Carter got money from Wilson, and Lupoe went through the pockets of another victim and took the shoebox with drugs in it. After the shooting started, the women ran away. Kilgore dropped her cell phone, and one of the black sandals she was wearing broke and fell off.
The women and the appellants all ran to the car that Carter and Williams had driven to the motel. Everyone got in, and they drove away. In the car, the three men discussed their plan for Carter to sell the drugs in the Pittsburgh area and then split the proceeds between them. They first stopped at a wooded area on Conley Road where Carter threw away some things, including a wallet and a mask. They then went to Carter's house in the Pittsburgh neighborhood. The three appellants went into the house with their guns and the box of drugs and other things taken from the victims' room. Only Williams and Lupoe returned, their hands empty. Stready said that she wanted to leave, and Lupoe told her that if the story of that night ever got out, "it would be nothing to get them [Williams and Carter] to do it again." He also told her to get rid of her cell phone. Shortly after that, Stready left in a taxi, Kilgore was dropped off at her aunt's house, and Gilliam was dropped off at a MARTA station.
Bryce Swiley, in whose room Lupoe and the women were staying at the Home Lodge, also testified, corroborating the women's story about the planning of the robbery, including that Williams and Carter had guns and masks and that Lupoe had a red bandana. Swiley also identified all three appellants in photographic lineups.
After the crimes, Wilson called 911. When the police arrived at the Home Lodge, they found Moses, who had been shot five times, barely alive; he died of his wounds
at the hospital. Inside Room 105, the police found four shell casings, all from the same .40-caliber Glock pistol. Outside the room, the police found Kilgore's cell phone and broken sandal. And in the parking lot, the police found a hockey mask, which DNA testing later showed had Williams's saliva on it. Kilgore, Gilliam, and Stready were later located and interviewed, and Stready took police officers to the wooded area on Conley Road, where they found another hockey mask and a wallet containing Wilson's identification card. Lupoe's nickname was "El," and cell phone records showed that a phone registered to "God El" called Carter's and Williams's phones multiple times in the hours before the crimes, including calls to Carter's phone at 11:54 p.m. and Williams's phone at 12:15 a.m. Carter also received a call from Stready's cell phone at 2:27 a.m., just before the crimes.
At trial, William Murdock, an Atlanta Police Department detective who worked with the FBI's gang task force, was qualified without objection as an expert in criminal street gangs and criminal gang activity.3 Detective Murdock testified about the evolution of the Jack City gang—the Jack City Boys—in the Pittsburgh neighborhood,...
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