Stepp-McCommons v. State

• Decision Date: 29 June 2020
• Docket Number: S20A0254
• Court: Georgia Supreme Court
• Parties: STEPP-MCCOMMONS v. The STATE.

309 Ga. 400

845 S.E.2d 643

STEPP-MCCOMMONS

v.The STATE.

S20A0254

Supreme Court of Georgia.

Decided: June 29, 2020

Frances C. Kou, 125 East Trinity Place Suite 214, Decatur, Georgia 30030, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Meghan Hobbs Hill, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Emily Kathleen Richardson, Sherry Boston, Destiny H. Bryant, Elizabeth Haase Brock, DeKalb County District Attorney's Office, 556 North McDonough Street, ste 700, Decatur, Georgia 30030, for Appellee.

McMillian, Justice.

Appellant Contevious Stepp-McCommons appeals his convictions for felony murder and other crimes in connection with the shooting death of Clarence Gardenhire.¹ On appeal, Stepp-McCommons alleges that the trial court erred in failing to give certain jury charges and that he received constitutionally ineffective assistance of trial counsel. Because we conclude that the trial court did not err on the grounds raised by Stepp-McCommons and that he has failed to establish his claims of ineffective assistance of counsel, we affirm.

1. Viewed in the light most favorable to the verdicts, the evidence at trial showed that Norman Lopez, Jr., and his brother-in-law, Jamar Perry, ran a business in which they would acquire, refurbish, and sell used cell phones. On occasion, they obtained inventory for their business by placing advertisements on websites like Craigslist. On August 19, 2013, Perry posted an ad on Craigslist seeking to purchase used cell phones. That same day, Stepp-McCommons’ co-defendant Malik Rice told his girlfriend he was going to rob someone by putting an ad to sell a cell phone on Craigslist. The plan was to lure the potential buyer to an abandoned house for the transaction; Rice would hide, and then rob the buyer of the cash brought for the transaction, as well as pretend to rob the "seller" (his co-conspirator). After at least two other people declined to participate in this plan, Rice asked Stepp-McCommons to help him that night, and Stepp-McCommons agreed to go with him.

At around 6:00 p.m. that evening, Perry received a response to his Craigslist ad from Rice, and he exchanged several text messages with Rice about purchasing cell phones, including at least one iPhone. Lopez asked his stepfather, Gardenhire, to accompany Perry to the purchase location because Perry was new to the Atlanta area. Perry and Gardenhire left for the meeting at around 9:00 p.m. and drove to the address Rice provided, where there was a house that appeared to be abandoned. Perry exited the vehicle, while Gardenhire stayed seated in the passenger seat.

Stepp-McCommons met Perry and Gardenhire when they arrived, while Rice concealed himself. Stepp-McCommons asked Perry to move closer to the abandoned house near where Rice was hiding, but Perry refused, saying he did not feel comfortable doing that. Perry testified that Stepp-McCommons became "fidgety" when he realized Perry had not come alone, and Stepp-McCommons asked if Perry and Gardenhire were police. Perry responded in the negative and flashed the $350 in cash that was inside his wallet, saying he was just there to purchase cell phones. Gardenhire stepped out of the car and pulled up the front of his shirt to show that he was unarmed. Gardenhire then sat back down in the passenger seat, leaving the car door open.

At that point, Stepp-McCommons said, "give it up, then," pulled up his shirt, and pulled out a gun, which Rice had given to him earlier. Stepp-McCommons pointed the gun at Perry, and when Gardenhire made a sudden movement, Stepp-McCommons turned the gun toward Gardenhire, firing it in rapid succession. As soon as shots were fired, Perry ran to a nearby house to get help.

Stepp-McCommons and Rice fled. While running away, Stepp-McCommons dropped Rice's iPhone in the backyard of a house nearby, and it was recovered shortly after the shooting. One of the men who had earlier turned down Perry's request to participate in the robbery testified that he saw Stepp-McCommons and Rice after the shooting. Rice told the witness that the deal "went wrong" and that Stepp-McCommons shot an old man.

Gardenhire, who was shot ten times, died at the hospital from his wounds

. The medical examiner testified that the majority of the shots were fired downward at Gardenhire, consistent with Gardenhire being in a sitting position and the shooter standing. Nine-millimeter bullets recovered from Gardenhire's body were later matched to a nine-millimeter Smith & Wesson handgun that was found the next day in the backyard of another house near where the shooting occurred. No other gun or other caliber of ammunition was recovered at the scene or in the car in which Perry and Gardenhire were riding.

Approximately 11 days after the shooting, Stepp-McCommons spoke with police. After initially denying any involvement, he gave them a handwritten statement saying that he agreed to go with Rice the night of the shooting to sell an iPhone. Stepp-McCommons stated that he was showing the phone to one man (Perry), when the other man (Gardenhire) pulled out a gun.² Stepp-McCommons said that he put his hand on Gardenhire's gun, but Gardenhire fired, so Stepp-McCommons shot back.

At trial, Stepp-McCommons testified that Rice never told him he planned to rob anyone; instead, he thought he was accompanying Rice to sell a cell phone. Nevertheless, when a friend gave Rice a gun "for protection," Stepp-McCommons knew they were going to a place where they would need protection, and Stepp-McCommons told Rice to give the gun to him. At the meeting location, Stepp-McCommons took Rice's phone to show the men while Rice waited behind a tree. Stepp-McCommons asked the men if they had any weapons, and Gardenhire stepped out of the car to show that he did not have a weapon. Stepp-McCommons testified that after sitting back down in the car, Gardenhire reached for something silver, so Stepp-McCommons "jumped" at Gardenhire, they wrestled, and Stepp-McCommons shot Gardenhire, although he "think[s]" Gardenhire shot him first.³ Stepp-McCommons said that he shot Gardenhire "rapidfire" because Gardenhire kept coming, although he also stated that Gardenhire never left the passenger seat of the car.

Though not enumerated as error, consistent with our customary practice in murder cases, we have reviewed the sufficiency of the evidence presented at trial. The evidence showed that Stepp-McCommons and Rice planned to meet Perry to rob him; that they armed themselves in preparation; that Gardenhire was shot ten times during the course of the robbery; that Stepp-McCommons and Rice fled the scene; and that other than the gun that Rice gave to Stepp-McCommons, there was no gun or ammunition of a different caliber recovered at the scene. Thus, we conclude that the evidence was sufficient to authorize a rational jury to reject Stepp-McCommons’ claim of self-defense and to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Shaw v. State , 292 Ga. 871, 872 (1), 742 S.E.2d 707 (2013) ("[I]ssues of witness credibility and justification are for the jury to decide, and the jury is free to reject a defendant's claim that he acted in self-defense." (citation and punctuation omitted)).

2. Stepp-McCommons asserts that the trial court erred in failing to give his requested charge on the affirmative defense of accident and in refusing his requests to charge the jury on involuntary manslaughter and reckless conduct as lesser included offenses. To justify a jury instruction on an affirmative defense, "there need only be slight evidence supporting the theory of the charge." Garner v. State , 303 Ga. 788, 790 (2), 815 S.E.2d 36 (2018) (citation and punctuation omitted). Similarly, "in order to authorize a jury instruction on a lesser-included offense, there must be some evidence in the record that the defendant committed that offense." Daniel v. State , 301 Ga. 783, 785 (II), 804 S.E.2d 61 (2017). But where "the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense." Lupoe v. State , 284 Ga. 576, 577-78 (2), 669 S.E.2d 133 (2008) (citation and punctuation omitted). "Whether the evidence was sufficient to warrant the requested instructions is a legal question, which we review de novo." Wade v. State , 304 Ga. 5, 8 (2), 815 S.E.2d 875 (2018) (citation and punctuation omitted). See also Wilson v. State , 279 Ga. 104, 105 (2), 610 S.E.2d 66 (2005).

(a) Accident. Stepp-McCommons argues that the trial court erred when it failed to give his requested accident charge under OCGA § 16-2-2, which provides that "[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence." Therefore, "[t]he affirmative defense of accident arises when a defendant contends that his acts were accidental or a product of misfortune rather than criminal intent or negligence." Hart v. State , 305 Ga. 681, 683, 827 S.E.2d 642 (2019).

In denying trial counsel's request for the charge, the trial court found that there was "not even the slightest evidence that the gun accidentally discharged." On appeal, Stepp-McCommons points to his own testimony that he did not know how many times he shot Gardenhire and that at one point when Gardenhire elbowed him, both his gun and the gun he said Gardenhire was holding hit the ground, presumably suggesting that the jury could have found that the gun discharged accidentally at that point. Moreover, Stepp-McCommons notes that he testified that he shot Gardenhire "unintentionally and not knowing."

However, Gardenhire was shot ten times, and the evidence showed that the majority of the shots were...