Strother v. State

• Decision Date: 20 May 2019
• Docket Number: S19A0279
• Citation: 828 S.E.2d 327,305 Ga. 838
• Parties: STROTHER v. The STATE.
• Court: Georgia Supreme Court

305 Ga. 838

828 S.E.2d 327

STROTHER

v.The STATE.

S19A0279

Supreme Court of Georgia.

Decided: May 20, 2019

Kenneth Wayne Sheppard, KENNETH W. SHEPPARD, P.C., 2182 Jane Court, Smyrna, Georgia 30080, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Scott Orion Teague, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Leigh Ellen Patterson, District Attorney, Luke Anthony Martin, A.D.A., FLOYD COUNTY DISTRICT ATTORNEY'S OFFICE, 3 Government Plaza, Suite 108, Rome, Georgia 30161, for Appellee.

Nahmias, Presiding Justice.

Appellant Kyle Strother was convicted of malice murder and other crimes in connection with the shooting death of Cristobal Becerre-Contreras. Appellant contends that the evidence presented at his trial was legally insufficient to support his convictions; that the trial court failed to act as the "thirteenth juror" when it denied his motion for new trial; that the court erred by admitting character evidence related to gang activities and other murders; that his trial counsel provided ineffective assistance by "opening the door" to that character evidence; and that he was denied a fair trial when one of his co-defendants allegedly testified falsely. Each of Appellant's claims is meritless, so we affirm.¹

1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's trial showed the following. On the evening of December 21, 2015, Kelesha Dorsey sent a text message to Becerre-Contreras, a man she had met once and with whom she occasionally exchanged texts, asking if she could borrow $ 40. Becerre-Contreras replied that he would give Dorsey the money if she "g[a]ve [him] a blowjob," but Dorsey refused. He then offered to pay her $ 100 for sex and told her that he had enough money "to pay [her] rent for one year." Dorsey eventually sent Becerre-Contreras text messages agreeing to have sex with him for $ 120 and telling him to come to her apartment later that evening.

Dorsey then told her roommate Delaney Ray and Ray's boyfriend Appellant, who was known as "Droop," that she wanted Becerre-Contreras's money but did not want to have sex with him. Dorsey asked Appellant to "scare [Becerre-Contreras] away" after he gave her the money but before they had sex. Appellant instead proposed the following plan: Dorsey would tell Becerre-Contreras to pick her up at a nearby gas station and to drive her to her cousin's house where they could buy marijuana; Dorsey would instead lead Becerre-Contreras to a house that belonged to Appellant's friend Marcus Townsend; Appellant would rob Becerre-Contreras there; and Appellant, Dorsey, and Ray would then flee in Ray's car. Dorsey sent Becerre-Contreras a text telling him to pick her up at a gas station near Ray's apartment in Rome.

Around 10:15 p.m., Appellant and Ray dropped off Dorsey at the gas station to wait for Becerre-Contreras. Surveillance video showed Appellant park Ray's car at the gas station, enter the convenience store, and then return to the car; Dorsey left the car moments later and entered the store as the car drove away. Appellant and Ray then drove to Townsend's house, and Appellant went into the back yard while Ray parked in a nearby cul-de-sac and waited in her car.

Ray sent a text to Dorsey at 10:15 p.m. saying, "make sure you don't lose [your] stuff," and then sent her directions to Townsend's house. Dorsey sent a text at 10:24 telling Ray, "Girl this man at a different store," and another at 10:29 saying, "I'm still waiting on him." Ray then sent texts instructing Dorsey: "TELL HIM BUY YOU WEED AND XANS but yall can get them to bring it to yall when yall get to ‘yo cousin’ house"; "make sure you look at [D]roop and make sure he straight"; and "[w]hen yall pull up yall go ahead and get out the car tell him yall got to use the back door cause you don't got the key to the front door."

The gas station's surveillance video showed Dorsey get into Becerre-Contreras's gray car and leave the gas station around 10:54 p.m. Per the plan, Dorsey told him to drive to her cousin's house so they could buy marijuana, but she instead directed him to Townsend's house. At 11:03, Dorsey sent Ray a text saying, "We getting out now come on." Ray replied, "I'm in the circle run to me" and "[w]atch [D]roop as you run make sure he straight." Dorsey told Becerre-Contreras that her cousin was not home but had left the back door open. They walked to the back yard, where Appellant jumped out from behind a fence, raising a silver revolver above his head as if to hit Becerre-Contreras.

Dorsey did not see what happened next, because she ran to Ray's car in the cul-de-sac. Moments later, the two women heard a gunshot. Appellant then ran to the car and told Ray to "drive off." On the way to Ray's apartment, Appellant said that "he shot [Becerre-Contreras] in the head" and gave Dorsey and Ray each about $ 170 from Becerre-Contreras's wallet. Appellant then called Townsend and told him not to go to his house, saying "I may have made a mess in your backyard." At 12:41 a.m., Appellant sent a text to Townsend saying, "Read and destroy ... don't go near ya spot fa a day or 2 ... stay away." A couple of hours after the shooting, Ray dropped off Appellant near Townsend's house to "clean the mess up," but Appellant returned to Ray's car moments later, saying that someone had been walking nearby. At 8:55 a.m., Appellant sent Townsend a text saying: "u kant go 2 da house ... ain't s**t c[ ]hanged ... just pullup n report da s**t ya self ... uon know nun ... kame home 2 a strange kar n a man layin in ya yard ... yo prints ain't on s**t mine is ... Read n destroy."² Appellant, Dorsey, and Ray then fled to his mother's house in Atlanta.

Investigators responded to a 911 call from Townsend reporting a dead body behind his house. In the back yard, they found Becerre-Contreras, who had died from a gunshot wound

to the back of his head. He was lying face down with his arms underneath his body, and he had abrasions on his face and blunt force trauma to his head. A medical examiner later determined that Becerre-Contreras's head trauma was consistent with being struck with a gun and that he had been shot from above at close range. It appears that after being struck with the gun in the head, he collapsed face down. Becerre-Contreras's phone, which showed the text messages he exchanged with Dorsey, was near his body, and his gray car was in the driveway. In a trash can outside the house, investigators found two receipts for prescription medications for Appellant. Investigators did not find any shell casings at the scene, which was consistent with a revolver being used in the shooting. Investigators later found a video on Ray's cell phone that showed Appellant with a silver revolver, and Ray testified that he always carried that gun and had it that night.

The next day, investigators interviewed Dorsey and Ray separately; the video recordings of their statements were played for the jury. Both women initially said that they did not know anything about the shooting; that Ray and her friend "Squeaky," a drug dealer, had dropped off Dorsey at the gas station that evening, where she planned to get a ride to her boyfriend's house; and that Ray then dropped off "Squeaky" and drove alone to Atlanta. After investigators told Dorsey that they knew about her text messages to Becerre-Contreras, she claimed that she and Becerre-Contreras planned to buy marijuana at Townsend's house from a man named "Tuck," who shot Becerre-Contreras when they arrived. Eventually, Dorsey and Ray both admitted the plan to rob Becerre-Contreras with their friend "Droop," who had robbed and then shot Becerre-Contreras. They then claimed that they did not know Droop's real name. Toward the end of Ray's interview, she identified Appellant as Droop and admitted that he was her boyfriend.

Dorsey and Ray were arrested after their first interviews. Investigators interviewed Ray again on December 30 and Dorsey on December 31, and the recorded statements were also played at trial.

The women both named Appellant as the shooter, and the version of events they provided was substantially similar to their trial testimony.

Appellant did not testify at trial; his defense theory was that Dorsey and Ray initially refused to give investigators the name of the shooter and later falsely provided his name because they were afraid of the actual shooter. Dorsey and Ray, however, both said in their first police interviews that they did not want to provide the shooter's name because it was someone they were close to. In addition, Ray indicated in her second interview that she was afraid of Appellant, and she testified that she initially refused to give the police Appellant's name because she was trying to protect him and that she was afraid of "getting hurt" if she identified him as the shooter. Dorsey testified that she had initially refused to provide Appellant's name because she had not wanted to be a "snitch." Both women also testified that they were not trying to protect an unidentified shooter.

2. Appellant contends that the evidence presented at his trial was legally insufficient to support his convictions. When properly viewed in the light most favorable to the jury's verdicts, the evidence showed that Appellant, who was known as Droop, concocted the plan to rob Becerre-Contreras with Dorsey and Ray, who later identified Appellant as the shooter in their recorded statements to the police and at trial. In addition, Becerre-Contreras's phone showed the text messages that he exchanged with Dorsey; surveillance video showed Appellant, who was driving Ray's car, drop off Dorsey at the gas station where Becerre-Contreras picked her up less than 45 minutes later; phone records showed that Dorsey and Ray then exchanged text messages that referenced the events leading up to the...