Oree v. State

• Decision Date: 17 May 2006
• Docket Number: No. S06A0269.,No. S06A0270.,S06A0269.,S06A0270.
• Citation: Oree v. State, 630 S.E.2d 390, 280 Ga. 588 (Ga. 2006)
• Parties: OREE v. STATE. Durham v. State.
• Court: Georgia Supreme Court

280 Ga. 588

Page 390

630 S.E.2d 390

OREE v.STATE.

Durham v.State.

No. S06A0269.

No. S06A0270.

Supreme Court of Georgia.

May 17, 2006.

Reconsideration Denied June 12, 2006.

Drew Findling, Cris Edward Schneider, The Findling Law Firm, Atlanta, for appellant.

Kelly R. Burke, Dist. Atty., Katherine Kelley Lumsden, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Chad Eric Jacobs, Asst. Atty. Gen., Timothy Michael Marlow, Asst. Dist. Atty., for State.

BENHAM, Justice.

In a joint trial, appellantsKyle Oree and Bennie Frank Durham were convicted of aggravated battery and the felony murder, with kidnaping as the underlying felony, of Robert Daughtry, Jr. Oree additionally was convicted of and sentenced for aggravated assault and Durham was convicted of and sentenced for possession of a firearm during the commission of a crime.On appeal, they jointly take issue with the sufficiency of the evidence and the exhibition to the jury of a portion of a movie called "State Property."Oree also asserts error in the trial court's refusal to permit him to present evidence that the victim had made threats which gave a fellow co-indictee who pled guilty and testified for the State a separate motive to kill the victim, and Durham argues the trial court committed reversible error when it denied his motion to sever his trial from that of his co-indictees.After reviewing the record in light of appellants' enumerations of error, we conclude no reversible error was committed and affirm the judgments of conviction.¹

Warner Robins police recovered the body of Robert Daughtry, Jr., from a trailer park's trash compacter on April 8, 2003.He had sustained blunt force injuries to his face, head, and ribs, and had suffered seven gunshot wounds to his legs and torso.The state medical examiner who performed the autopsy testified the victim had been beaten, resulting in a broken nose, several fractured ribs, sub-arachnoid hemorrhaging, and head lacerations, and shot seven times, with bullets shattering bones in his right leg, perforating both lungs, and injuring his aorta.The cause of death was determined to be multiple gunshot wounds.

The State presented evidence that Oree, a young man who sought to promote and record young rap music artists, formed an organization in early 2003 called "Original Crhyme Family" and several of its members, including the victim, lived in Oree's apartment.The victim, who provided security for Oree, left in late March 2003 as a result of an altercation between the victim and Oree over the time the victim was spending with a girlfriend.Shortly after the victim left, Oree became angry upon learning the victim was going to make a recording in Savannah.Co-indictee Melvin Daniels² reported the victim had returned from Savannah and was threatening to kill everyone in Oree's apartment.Witnesses testified Oree drank beer the day and evening of April 7, 2003, and told Daniels to have three others, including appellant Durham, come to Oree's apartment.When they arrived in the early hours of April 8, Oree instructed the trio and Daniels to kill the victim.Guns stored in Oree's apartment were distributed to the quartet, and they left.Some time later, one of the quartet telephoned Oree, who took the call on a speaker phone, to report the quartet had found the victim and needed direction as to what to do with him.Oree told them to beat him.The quartet returned to Oree's apartment with blood on their clothing and told Oree they had killed the victim by shooting him.According to several witnesses, this news upset Oree greatly, and one witness testified Oree told the quartet to get a blanket and return to the victim's body where they were to wrap the body in the blanket and place it in a dumpster.Oree told an occupant of the apartment to collect and dispose of the quartet's bloody clothing, and told his girlfriend and two other occupants to collect and dispose of the guns used by the quartet.The person who collected the clothing led police to the dumpster in which she had placed the clothing wrapped in a trash bag, and testified she saw Oree's girlfriend throw some of the guns into a lake in Oree's apartment complex.The dive recovery team from the Warner Robins Fire Department recovered two guns from the lake, and another witness retrieved one gun from the person to whom he had sold it and another from the place he had hidden it in pine straw near the apartment's air conditioning unit.³

Co-indictees Daniels and Alex Marshall⁴ testified about the activities of the quartet between the time they left Oree's apartment and returned with bloodied clothing.Marshall testified Durham was the one who pulled the sleeping victim from his bed, and Daniels testified appellant Durham struck the victim.Marshall stated they took the victim to a brick wall where all of them struck him and Durham "rammed" the victim's head into the brick wall.Daniels and Durham then threw the victim over the brick wall where he was shot repeatedly by Daniels, Marshall, and co-defendantJamaal Williams.When the quartet returned to the apartment and told Oree what they had done, a witness heard Durham tell Oree that he, too, had shot the victim.

A firearms examiner from the GBI State Crime Lab testified that a bullet and bullet fragments recovered from the victim's body, as well as bullets and cartridge casings found near a pool of blood between the victim's home and the dumpster in which his body was found, were fired from two of the four guns recovered.A Crime Lab forensic biologist testified he conducted DNA testing on blood found on the clothing recovered from the apartment's dumpster, including the yellow visor worn by appellant Durham, and concluded it was the victim's blood.

1.The evidence summarized above was sufficient to authorize the jury to conclude beyond a reasonable doubt that both appellants were guilty of felony murder (kidnaping) and aggravated battery, Oree was also guilty of aggravated assault, and Durham was also guilty of possession of a firearm during the commission of a crime.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).See alsoOCGA § 16-2-20(parties to a crime).

2.Appellant Durham contends the trial court abused its discretion when it denied his motion to sever his trial from that of his co-indictees.SeeOCGA § 17-8-4(defendants jointly indicted for a capital felony when the death penalty is waived "may be tried jointly or separately in the discretion of the trial court.").At the time the various motions to sever were filed and considered, there were five co-defendants.In exercising its discretion, the trial court applied the three-pronged test used in Dennard v. State,263 Ga. 453(5), 435 S.E.2d 26(1993), and determined there was no persuasive argument that evidence offered against one defendant might be considered improperly against another, and no evidence of antagonistic defenses that would jeopardize each other's right to a fair trial, though the court acknowledged the possibility of the co-defendants' "finger-pointing" at one another.However, because of its concern that five defendants tried at once would create confusion concerning the evidence and the law applicable to each defendant, the trial court granted the motion to sever and ordered that no more than three defendants be tried together.Two of the five co-defendants subsequently pled guilty, leaving only Oree, Durham, and co-defendant Williams to be tried.

On appeal, Durham contends he should have been tried separately from Oree and Williams because there was no evidence he was a member of Oree's organization.However, one witness identified Durham as a member of Oree's organization who provided security, and another testified Durham visited Oree's apartment several times the weekend before the murder and spent several hours socializing with others while there.Oree's girlfriend testified Oree claimed to be a member of a gang called "The Bloods" and stated Durham was introduced to the group as a "Blood."We conclude the trial court did not abuse its discretion when it denied Durham's motion to be tried separately.

3.Appellant Oree contends the trial court erred when it permitted the jury to view a scene from a movie, "State Property," which witnesses testified Oree...