Overstreet v. State

• Citation: 312 Ga. 565,864 S.E.2d 14
• Decision Date: 05 October 2021
• Docket Number: S21A0712
• Parties: OVERSTREET v. The STATE.
• Court: Georgia Supreme Court

312 Ga. 565

864 S.E.2d 14

OVERSTREET

v.The STATE.

S21A0712

Supreme Court of Georgia.

Decided: October 5, 2021

Kathleen Strang, 2003 G Dawson Road, Albany, Georgia 31707, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Eric Christopher Peters, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Bradford Lee Rigby, District Attorney, Cordele Judicial Circuit District Attorney's Office, PO Box 5510, Cordele, Georgia 31010, for Appellee.

Bethel, Justice.

A Ben Hill County jury found Dabrentise Overstreet¹ guilty of malice murder and other offenses in connection with the shooting death of Craigory Burch, Jr., the aggravated assault and armed robbery of Burch's girlfriend, Jasmine Hendricks, and the aggravated assault of their son, C. B., a minor. On appeal, Overstreet argues that the evidence presented at trial was insufficient to support his convictions for malice murder and violations of the Georgia Street Gang Terrorism and Prevention Act (the "Gang Act"), that the trial court abused its discretion by admitting certain evidence of a prior conviction and guilty plea, and that his trial counsel provided ineffective assistance by failing to move for a change of venue. We affirm.²

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On November 30, 2015, Burch won over $400,000 playing the lottery. At the time, Burch lived with his girlfriend, Hendricks, and their children in Fitzgerald. After winning the lottery, Burch bought Christmas presents for neighborhood children and gave them out at a nearby gymnasium. Burch and Hendricks bought a new house on Stubbs Avenue, and the family moved there in early January 2016. Burch also bought a new Dodge Durango.

On the afternoon of January 20, 2016, Overstreet was at Katherine Tillman's house with Rosalyn Swain, Anjevell Johnson, Earnest Holcomb, and Wayan Jordan. Overstreet complained that he did not have any money, and Johnson suggested that they rob Burch. Overstreet then called Nathaniel Baker and asked him to bring Overstreet a gun. Overstreet "called around" seeking another gun but was unable to find one. Overstreet also asked Jordan to join him.

Around 9:00 that evening, Keyana Dyous and Baker drove from Moultrie to Fitzgerald in Dyous's silver Honda Accord. Baker was carrying an Intratec 9mm pistol (sometimes referred to as a "TEC-9") that he had retrieved from the trunk of Dyous's car.³ Dyous and Baker picked up Johnson, who had left Tillman's house earlier in the evening. They all drove to Tillman's house to attend a "G-Shine" gang meeting. When they arrived, Overstreet came out to the car, opened the trunk, removed a gun, and said "Hell yeah, boy, that's a TEC-9."

G-Shine is a subset of the "East Coast Bloods" street gang, and Baker, Johnson, Overstreet, Jordan, and Holcomb were all members of G-Shine. They each had nicknames, which Dyous told the police were their "Blood names." Other members of the gang included Adonis Sharp, also known as "Knowledge," who was considered a "Big Homie." According to Dyous, Sharp was "at the top" of the gang and "over" other members, including Baker, Jordan, Overstreet, Johnson, and Holcomb.

The State presented the testimony of an expert in criminal street gangs and criminal gang activity. The expert testified that a "Big Homie" is someone in the "upper echelon of the gang." He elaborated that each gang has a different organizational structure and regulations but that the hierarchy is often similar to that used by the military or law enforcement agencies. The expert stated that a low-level "soldier" would carry out orders given by those above him in the command structure and that doing so would help a "soldier" rise in the organization. The expert testified that G-Shine is one of a number of gangs referred to as "shooters" and a "cleanup crew" who "put in work," meaning that they enforce organizational rules, make money for the gang, and murder or harm others for the gang. The expert described G-Shine as among the most violent factions of the East Coast Bloods. He testified that if, for example, a local chapter of G-Shine was not "performing up to standards" by "putting in enough work," gang members from nearby towns might be called in to assist them.

The expert reviewed several social media posts made by Overstreet, Johnson, Holcomb, and Jordan and testified that they included photographs of members giving gang hand signs and wearing red, the color most prominently associated with the East Coast Bloods and G-Shine. A number of the posts also included common lingo associated with the East Coast Bloods gang. Photographs posted to Overstreet's social media account showed that he had numerous gang-related tattoos. He was also known to go by the nickname "Peter Roll Shine." That nickname indicated that he was a member of G-Shine and that he had either committed a murder or that he "can do it."

The expert testified that a rival gang, the Gangster Disciples, often displayed the colors black and blue. The expert testified that if the Gangster Disciples had established business for themselves in a particular area, there was a likelihood of violence if members of the two gangs confronted each other. The State presented evidence that Overstreet and Johnson had been involved in an incident in Sylvester with some members of the Gangster Disciples in which Johnson and Overstreet were injured and Johnson's girlfriend's car was damaged by gunfire.

Several members of the G-Shine gang lived in the neighborhood in Fitzgerald where Burch and Hendricks lived before Burch won the lottery. The State presented evidence that Overstreet, Johnson, and Jordan did not appreciate that Burch had bought gifts for the children in the neighborhood and stated that they wanted to rob Burch because he was "flexing" and "showing off" by handing out the gifts.

After the G-Shine meeting, which ended sometime before 11:00 p.m., Dyous and Swain drove various gang members, including Overstreet, to the house of a man known as "Perp." Overstreet, Baker, Holcomb, and Jordan got out of the car and spoke to Perp, who gave them directions to a gambling house where Burch was supposed to be. After spending about five minutes at Perp's house, Overstreet, Johnson, Jordan, and Baker got into Dyous’ car. They put on ski masks and covered their faces with white t-shirts. Dyous testified that Baker's gun was in her front seat at this time. Holcomb got into Swain's car, and Overstreet instructed Swain to wait on a side street. The group in Dyous's car drove around for approximately 20 to 25 minutes, but they were unable to locate the gambling house.

Overstreet, Jordan, and Baker got out of the car near a local convenience store, and Dyous and Johnson drove to a nearby McDonald's. Johnson told Dyous that he did not get out of the car with the others because he did not have a gun.

Overstreet, who was 5 feet 11 inches tall and weighed 200 pounds, was wearing a black jacket. Jordan, who was 6 feet 6 inches tall and weighed 154 pounds, wore a green jacket. Baker, who was 5 feet 9 inches tall and weighed 130 pounds, wore a brown jacket.

Burch and Hendricks were at their new home with their children. While watching television, Hendricks heard a gunshot, and three men forcibly entered the home. Once inside the home, two of the men stayed in the living room while the third went into the kitchen. All three men had face coverings, and each had a gun. The "buff," "stocky and short" man had a long, black gun, approximately two-and-a-half to three feet long, and he repeatedly asked, "Where the money at?" One of the three intruders, who was tall and "skinny," held Hendricks at gunpoint and took three cell phones and her wallet, which contained about $200. Burch was holding C. B. while sitting on the couch, and the "buff" man was pointing a gun at them. After the intruders asked Burch for money, he attempted to give the "buff" man his jeans. The man then shot Burch in the knee twice. Burch yelled, "Don't do this in front of my kids."

The men left the home approximately two to three minutes later. Burch was still alive at this time and was still holding C. B. However, after the men left the home, Hendricks and Burch saw that someone had turned on the lights of their Dodge Durango, which was parked in the driveway. The "buff" man then came back inside the home, shot Burch five more times in the thighs and chest, then left with the other two men. C. B. was sitting on the couch and began to cry. After the men left, Hendricks looked outside and saw the "buff" man standing near a stop sign and speaking on a phone. Hendricks then saw a silver Honda with tinted windows ride past the house.

Hendricks went outside with C. B. and one of her other children and asked a neighbor for help.⁴ Hendricks called 911 from her neighbor's phone, and then the neighbor drove Hendricks and the children to a nearby convenience store and waited for the police to arrive.

Two other neighbors, Jan Bagley and Wayne Shavers, stated that they heard gunshots during the time of the incident. After hearing two sets of gunshots, Bagley walked outside and noticed that the Durango's taillights were on. Wayne Shavers saw three men running outside after he heard the gunshots. He described one of the men as around 6 feet 3 inches tall, and the other two as around 5 feet 9 inches tall. Shavers also stated that he saw one of the three men run from the Durango. Two of the men were wearing dark clothing. Shavers later identified the other man, who was wearing a green hooded sweatshirt as he fled from Burch's house, as Jordan.

Law enforcement officers responded to a 911 call and came to the house on Stubbs Avenue around midnight. When they arrived, Burch did not have a pulse. During their investigation of the crime scene, officers found...