296 Ga. 384
FINAL COPY
S14A1369. KITCHENS v. THE STATE.
MELTON, Justice.
Following a jury trial, Shawn Kitchens was found guilty of felony murder,
aggravated assault, possession of a firearm during the commission of a felony,
and participation in criminal street gang activity.1 On appeal, Kitchens
contends, among other things, that the evidence was insufficient to support the
verdict and that the trial court erred by improperly charging the jury on motive.
Kitchens further claims that trial counsel rendered ineffective assistance. For
the reasons set forth below, we affirm.
1
On April 5, 2011, Kitchens was indicted for malice murder, felony
murder, two counts of aggravated assault, possession of a firearm during the
commission of a felony, and participation in criminal street gang activity.
Following a joint jury trial, Kitchens was found guilty of all counts except
malice murder on September 2, 2011. On September 7, 2011, the trial court
sentenced Kitchens to life imprisonment for felony murder and aggravated
assault, twenty consecutive years for aggravated assault, fifteen consecutive
years for participation in criminal street gang activity, and five additional
consecutive years for possession of a firearm during the commission of a felony.
Kitchens' motion for new trial, filed on September 21, 2011, and amended on
September 17, 2013, was denied by the trial court on March 25, 2014.
Thereafter, Kitchens filed a timely notice of appeal, and his case, submitted on
the briefs, was docketed to the September 2014 term of this Court.
1. In the light most favorable to the verdict, the record shows that, on the
evening of July 27, 2010, Tavish Faulks and Emanuel Stroud went to Edward
Collier's “convenience store” operated out of Collier's residence. When they
arrived, Kitchens, who had been picked up earlier by Collier, was sitting outside
on the porch with his co-defendants, Travis Taylor, Shemarques Watkins, and
Jerald Johnson.2 All four men were associated with the “Westside” or
“Unionville Crips” gang, and there was some testimony that, because of that
affiliation, they would be unwelcome in Collier’s neighborhood. Stroud and
Faulks were associated with another group known as the “Bloomfield Boys.”
Kitchens and Stroud began arguing over a MySpace post,3 and Faulks tried to
intervene to end the altercation. According to several witnesses, Kitchens
walked up to Faulks with his gun drawn. Kitchens instructed other men on the
porch, who had guns, to shoot if Faulks intervened or moved. Stroud and Faulks
began to walk away when Stroud heard whispers followed by shots from
2
Kitchens was indicted along with Travis Taylor, Edward Paul Collier,
Shemarques Trevon Watkins, and Jerald Leonard Johnson. Collier and Watkins
entered guilty pleas before the jury was selected and sworn. Johnson entered a
guilty plea shortly after the trial began. As a result, the jury ultimately
determined the guilt of only Kitchens and Taylor.
3
No evidence was presented at trial regarding the content of this post.
2
multiple guns.4 Faulks and Watkins were injured, and Rodgeren Gary, a regular
customer of Collier, was mortally wounded. Faulks identified Kitchens as the
shooter, and he also later identified Kitchens in a photo lineup.
With regard to gang activity, Detective Sedrick Pinson testified that gangs
in Macon were known for acts of violence such as murder, shootings, and car
jackings, and with every major gang-related case the police had investigated
recently, a social media website had fueled the violence between gangs. As
stated, there was also evidence that Kitchens was associated with one gang and
that Stroud was associated with another. In addition, Collier testified that
bringing Kitchens and Watkins to his home had been a bad idea, because they
were not welcome on that side of town. Collier further testified that bringing the
two men into that neighborhood likely “started the whole thing.” Watkins
testified in a similar manner.
This evidence was sufficient to enable a rational trier of fact to find
Kitchens guilty of all the crimes for which he was convicted beyond a
reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d
4
Some testimony indicated that a number of the Bloomfield Boys gathered
in the street and also started shooting.
3
560) (1979). See also Jones v. State, 318 Ga. App. 26 (1) (b) (733 SE2d 72)
(2012).
2. Kitchens contends that the trial court erred by denying his request to
give his own particularized instruction regarding the possible motives of
testifying witnesses. Rather than giving Kitchens’s instruction, the trial court
gave the pattern jury charge on witness testimony. As such, the jury was
properly instructed that they “alone shall decide the believability of the
witnesses,” and could consider “any possible motive . . . negotiated pleas, grants
of immunity or leniency, or similar matters.” Suggested Pattern Jury
Instructions, Vol. II: Criminal Cases, § 1.31.80. Contrary to Kitchens’s
contentions, this instruction fully apprised the jury how to consider the
testimony of witnesses, including the testimony of Kitchens’s co-defendants
who testified after entering plea deals. There was no error.
3. Kitchens argues that the trial court erred by failing to grant his motion
to sever his trial from his co-defendant, contending that his case was harmed by
antagonistic defenses. We disagree.
It is well-settled that a
trial court has broad discretion to grant or deny a motion for
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severance. See OCGA § 17-8-4 [Cit.] In ruling on a severance
motion, the trial court should consider: (1) the likelihood of
confusion of the evidence and law; (2) the possibility that evidence
against one defendant may be considered against the other
defendant; and (3) the presence or absence of antagonistic defenses.
[Cit.]
Krause v. State, 286 Ga. 745, 749 (5) (691 SE2d 211) (2010). “The burden is on
the defendant requesting the severance to do more than raise the possibility that
a separate trial would give him a better chance of acquittal. He must make a
clear showing [that a joint trial would lead to] prejudice and a consequent denial
of due process.” Character v. State, 285 Ga. 112, 118 (5) (674 SE2d 280)
(2009) (punctuation and footnote omitted).
In this case, there was little likelihood of jury confusion, as there were
ultimately only two defendants and there was no difference in the law applied
to either of them. See Moon v. State, 288 Ga. 508, 510 (2) (705 SE2d 649)
(2011) (holding that “there was no likelihood of confusion by the jury as to the
evidence and the law because there were only two defendants ‘who were jointly
indicted for the same offenses, which involved the same witnesses, and the
evidence indicated that they acted in concert’”) (citation omitted). In addition,
the jury returned a separate verdict for each defendant and considered each
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indictment separately. See Thorpe v. State, 285 Ga. 604, 609 (678 SE2d 913)
(2009) (“There is likewise no indication that the jury confused the evidence or
law; all three defendants were charged with identical crimes, and the jury, in
reaching different verdicts as to each co-defendant, proved itself amply capable
of distinguishing the evidence relevant to each.”). Lastly, Kitchens has failed to
show how his defenses were antagonistic toward his co-defendant. Even if he
had, however, the presence of antagonistic defenses “alone . . . is insufficient to
require severance, because ‘unless there is a showing of resulting prejudice,
antagonistic defenses do not automatically require a severance.’” (Citation
omitted.) Herbert v. State, 288 Ga. 843, 845 (708 SE2d 260) (2011). No such
showing has been made. Accordingly, the trial court did not abuse its discretion
in denying the motion for severance.
4. Kitchens contends that trial counsel provided ineffective assistance by
failing to investigate and call Adrian Stokes and Louis Frazier as witnesses
during trial. See Strickland v. Washington, 466 U. S. 668 (II) (104 SCt 2052, 80
LE2d 674) (1984). However, contrary to Kitchens’s claims, it cannot be said
that trial counsel failed to investigate these witnesses. Testimony at the motion
for new trial hearing indicates that the witnesses were brought to trial counsel’s
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office and that they were questioned by her. Moreover, Kitchens presented no
testimony from either witness at the motion for new trial hearing. As a result,
Kitchens merely speculates that these witnesses may have provided information
beneficial to his case, which is not sufficient to support a claim of ineffective
assistance. See McDaniel v. State, 279 Ga. 801 (2) (d) (621 SE2d 424) (2005).
Judgment affirmed. All the Justices concur.
Decided January 20, 2015.
Murder. Bibb Superior Court. Before Judge Christian, Senior Judge.
W. Rocky Adams, for appellant.
K. David Cooke, Jr., District Attorney, Sandra G. Matson, Myra H.
Tisdale, Assistant District Attorneys, Samuel S. Olens, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Rochelle W. Gordon, Assistant Attorney General,
for appellee.
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