Cunningham v. State

FINAL COPY




                 S18A1525. CUNNINGHAM v. THE STATE.

      HUNSTEIN, Justice.1

      Appellant Denirio Perrell Cunningham was tried and convicted of murder

and related offenses in connection with crimes he committed against David

Rucker, Ashley Gay, and their two minor children.2 Cunningham appeals,

      1
       It has been an honor and a privilege to serve the people of the State of
Georgia for over 30 years.
      2
         On November 28, 2012, a Clayton County grand jury indicted Cunningham,
along with Joseph Irvine Harris, as follows: malice murder of Rucker (Count 1);
felony murder of Rucker predicated on burglary (Count 2); burglary (Count 3);
aggravated assault of Rucker (Count 4); aggravated assault of Gay (Count 5);
aggravated assault with intent to rob of Rucker (Count 6); aggravated assault with
intent to rob of Gay (Count 7); false imprisonment of Gay (Count 8); false
imprisonment of D. R., a minor girl (Count 9); false imprisonment of D. R., a minor
boy (Count 10); criminal trespass (Count 18); and two counts of cruelty to children
in the first degree (Counts 19 and 20). Regarding Counts 11-17, Cunningham alone
was charged with seven separate counts of possession of a firearm during the
commission of a crime (Count 11 — burglary; Count 12 — aggravated assault of
Rucker; Count 13 — murder of Rucker; Count 14 — aggravated assault of Gay;
Count 15 — false imprisonment of Gay; Count 16 — false imprisonment of D. R., a
minor girl; Count 17 — false imprisonment of D. R., a minor boy).
       Cunningham and Harris were tried together from July 8-12, 2013.
Cunningham was convicted on all charges. On August 1, 2013, the trial court
sentenced him to life without parole for malice murder (Count 1), twenty years
consecutive for burglary (Count 3), twenty years concurrent for the aggravated assault
alleging that the evidence was insufficient to support his convictions, that the

trial court erred by improperly admitting evidence pursuant to OCGA § 24-4-

404 (b), and that he received ineffective assistance of counsel. We reverse

Cunningham’s convictions and sentences for false imprisonment and the related

weapons charges because of insufficient evidence, but we affirm his remaining

convictions and sentences.

      Viewed in the light most favorable to the jury’s verdict, the evidence

presented at trial established that, on the evening of June 14, 2012, Cunningham

and his co-defendant, Joseph Harris,3 asked their acquaintance, Keith Alexander,

for a ride to Brooks Crossing Apartments in Clayton County so that Harris

of Gay (Count 5), three ten-year concurrent sentences for the false imprisonment
charges (Counts 8-10), two twenty-year concurrent sentences for the cruelty charges
(Counts 19 and 20), and twelve months concurrent for criminal trespass (Count 18).
The trial court also sentenced Cunningham on four of the weapons charges wherein
he received five years each on Counts 11, 14, 16 and 17 to run concurrent to each
other but consecutive to Cunningham’s other sentences. The remaining charges were
merged or vacated by operation of law, rulings which were not challenged on appeal.
See Dixon v. State, 

 (4) (

) (2017).
       Cunningham timely filed a motion for new trial on September 3, 2013, which
he subsequently amended through new counsel on January 21, 2015, December 28,
2015, and January 4, 2016. After a hearing, the trial court denied the motion as
amended in an order filed on March 15, 2018. Cunningham timely filed a notice of
appeal to this Court. The case was docketed to the August 2018 term of this Court
and submitted for a decision on the briefs.
      3
        This Court recently affirmed Harris’ convictions and sentences in part and
reversed them in part. See Harris v. State, 

 (

) (2018).
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could, ostensibly, retrieve some clothing. Alexander agreed and Harris provided

directions so that Alexander could drive the men to the apartment complex.

      Around 9:00 p.m., Ashley Gay and David Rucker had just put their

children to bed when they heard banging on the balcony door of their second-

floor apartment. Soon thereafter, they heard the sound of someone climbing

through their closed window blinds. Gay and Rucker barricaded themselves and

their two screaming children (D. R., a minor girl, and D. R., a minor boy) in the

back bedroom of the apartment. Cunningham and Harris kicked in one bedroom

door before proceeding to the back bedroom where the family was hiding. After

the men succeeded in kicking down that door, Rucker pushed the men out of the

room and down the hallway, shouting, “No bro, no bro, my kids in here.” Gay

heard a gunshot, then the apartment fell silent. When Gay looked around the

corner, she saw Rucker lying on the floor.

      Cunningham and Harris hurried back to Alexander’s car. They jumped

inside and told him to “pull off, pull off.” Alexander drove away, asking the

men numerous times what had happened, but neither man would answer.

Finally, when Alexander pulled into the driveway of a friend’s house, Harris,



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who looked upset, responded, “Man, stuff got real crazy in there.” Alexander

continued to push for information; Cunningham explained that he and Harris

were “trying to hit a lick” and admitted to shooting “Ruck.”

      Officers arrived at the scene and found Rucker unresponsive. The medical

examiner determined that Rucker died from a single gunshot wound to the chest

and found signs of blunt force trauma to Rucker’s face and forehead. During

their investigation, officers located a chair positioned on top of the air

conditioning unit just below the victims’ second-floor balcony and found a

window screen lying on the victims’ balcony. Gay told officers that the two

intruders had on black masks and black gloves, and, though she did not see their

faces, she believed “Joe,” one of Rucker’s longtime friends, might have been

responsible. Law enforcement dusted the apartment’s balcony door for prints

and located a fingerprint that matched Harris’ left index finger.

      A few days later, Alexander informed law enforcement that Cunningham

and Harris were involved in the victim’s murder.          The two men were

subsequently arrested and held at the Clayton County jail. While there, both

men made numerous incriminating statements to other individuals regarding

their participation in the crimes.     While incarcerated, Cunningham also

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attempted to have Alexander killed in order to prevent him from testifying. At

trial, the State introduced evidence via OCGA § 24-4-404 (b) of a prior armed

robbery allegedly committed by both defendants.

      1.    Cunningham first argues that the evidence was insufficient to

sustain his convictions. When evaluating the sufficiency of evidence, the proper

standard of review is whether a rational trier of fact could have found the

defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). “This Court does not reweigh

evidence or resolve conflicts in testimony; instead, evidence is reviewed in a

light most favorable to the verdict, with deference to the jury’s assessment of the

weight and credibility of the evidence.” (Citation and punctuation omitted.)

Hayes v. State, 

 (

) (2013). Moreover, a

“reviewing court must consider all of the evidence admitted by the trial court,

regardless of whether that evidence was admitted erroneously.” (Citations and

punctuation omitted.) Kemp v. State, 

 (

) (2018).

      Viewed in this manner, the evidence was sufficient to sustain

Cunningham’s convictions and sentences for malice murder, burglary,



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aggravated assault of Gay, cruelty to children, criminal trespass, and the related

weapons charges. However, as we did in Harris’ appeal, see Harris v. State, 

 (1) (

) (2018), we find that the evidence was insufficient

to support Cunningham’s convictions and sentences for false imprisonment and

his convictions and sentences for possessing a firearm during the commission

of the false imprisonment of Gay and her two minor children.

      “A person commits the offense of false imprisonment when, in violation

of the personal liberty of another, he arrests, confines, or detains such person

without legal authority.” OCGA § 16-5-41 (a). Here, there is no evidence that

Cunningham arrested, confined, or detained any of the victims. Indeed, the

victims chose to barricade themselves and their children in their back bedroom

and tried to stop Cunningham and his co-defendant from entering.

Consequently, the evidence was insufficient to establish Cunningham’s guilt

beyond a reasonable doubt regarding the three counts of false imprisonment and

the three counts of possession of a firearm during the commission of a false

imprisonment, and his convictions and sentences for the same must be reversed.

See Harris, 

 (1); Ward v. State, 

 (1) (c) (

) (2010).

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      2.    Prior to trial, the State filed a notice of intent pursuant to OCGA §

24-4-404 (b) to introduce evidence of a prior home invasion and armed robbery

allegedly committed by Cunningham and Harris. At a pre-trial hearing on the

notice, the State made a proffer showing as follows. Two months prior to

Rucker’s murder, Rogers Glenn was at home with his girlfriend when Harris and

a masked man (later identified as Cunningham) entered the residence. Both men

were armed and held the victims at gunpoint. After Cunningham struck Glenn

over the head, rendering him unconscious, Cunningham forced the girlfriend to

perform oral sex on him at gunpoint. The men then stole wallets, cash, jewelry,

and electronics from the home; the victims’ wallets were later recovered from

Cunningham’s bedroom.

      The State requested that this other acts evidence be admitted at trial in

order to establish intent, motive, and plan. Cunningham objected. The trial

court admitted the evidence for the purposes of demonstrating “intent,

preparation and plan,” concluding that the probative value of the other acts

evidence was not substantially outweighed by undue prejudice. Cunningham

asserts that the admission of this evidence at trial was error.



                                        7
      Assuming, without deciding, that the trial court’s ruling was erroneous,

based upon the strong evidence establishing Cunningham’s guilt, including

witness testimony, the many incriminating statements made by both defendants,

and the evidence that Cunningham attempted to have the State’s key witness,

Keith Alexander, killed prior to trial, we conclude that it is highly probable that

any error did not contribute to the jury’s guilty verdict. See Timmons v. State,

 (2) (b) (

) (2017); Boothe v. State, 

 (2) (b)

(

) (2013).

      3.     Finally, Cunningham argues that his trial counsel was ineffective for

failing to file an alibi notice prior to trial, and for failing to call Eric Todd as an

alibi witness at trial. In order to establish ineffective assistance of counsel, a

defendant must show that his counsel’s performance was professionally

deficient and that, but for such deficient performance, there is a reasonable

probability that the result of the trial would have been different. Strickland v.

Washington, 

 (

, 80 LE2d 674) (1984). “If the

defendant fails to satisfy either prong of the Strickland test, this Court is not

required to examine the other.” Propst v. State, 

 (

) (2016). “A court considering a claim of ineffective assistance must apply

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a ‘strong presumption’ that counsel’s representation was within the ‘wide range’

of reasonable professional assistance.” (Citation omitted.) Harrington v. Richter,

 (

, 178 LE2d 624) (2011). “In reviewing the trial

court’s decision, we accept the trial court’s factual findings and credibility

determinations unless clearly erroneous, but we independently apply the legal

principles to the facts.” (Citation and punctuation omitted.) Wright v. State, 

 (

) (2012). With these principles in mind, we review

Cunningham’s claim.

      On March 28, 2017, the trial court held a hearing on Cunningham’s

motion for new trial as amended. There, trial counsel testified that, based upon

his review of the evidence, the defense’s theory at trial was that Cunningham

was not present at the scene of the crime. Counsel recalled discussing the

possibility of an alibi defense with Cunningham, but he did not recall

Cunningham stating he had an alibi for the night of the crimes nor did he recall

receiving any name or information regarding a potential alibi witness. Counsel

testified that if he had been provided with the name of an alibi witness, he would




                                        9
have interviewed that individual and determined whether that witness would

have been a good fit for the defense’s theory of the case.

      Cunningham attempted to call Eric Todd as a witness at the March 28

hearing; however, Todd did not appear despite being properly subpoenaed by

counsel. The hearing was continued in order to give counsel an opportunity to

locate Todd and secure his appearance. A second hearing took place on April

14, 2017, and Todd, once again, failed to appear. At this time, the trial court

attached a witness warrant to Todd’s subpoena and continued the hearing. On

June 6, 2017, Todd filed a motion to set aside the attachment, asserting he had

no information about Cunningham’s whereabouts on the day of the crimes.

Then, on July 18, 2017, Todd finally appeared at a third hearing on

Cunningham’s motion and testified that he was with Cunningham during the

time the crimes were committed. He denied ever speaking with trial counsel and

admitted that he had previously stated that he had no information regarding an

alibi defense. Cunningham and his mother, Jane, also testified at the third

hearing, wherein they stated that they told trial counsel about Eric Todd as a

potential alibi witness.



                                      10
      In its order denying Cunningham’s motion for new trial, the court credited

counsel’s testimony over the testimony of Todd, Cunningham, and his mother,

finding that trial counsel was not notified of the potential alibi witness. The

court also concluded that, even if counsel had been told about Todd, because of

the issues surrounding his credibility, Todd’s testimony would not have

produced a different result at trial.

      Giving the proper deference to the trial court’s factual findings and

credibility determinations, we agree that Cunningham has failed to carry his

burden under Strickland. See Escobar v. State, 

 (5) (

)

(2005) (trial counsel cannot be deemed ineffective for failing to locate alibi

witness whose existence was not brought to counsel’s attention). Accordingly,

Cunningham’s claims of ineffective assistance of counsel fail.4

      Judgment affirmed in part and reversed in part. All the Justices concur.




      4
          And that’s all she wrote.


                                        11
                        Decided December 10, 2018.

     Murder. Clayton Superior Court. Before Judge Simmons, Senior Judge.

     Stanley W. Schoolcraft III, for appellant.

     Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Assistant

District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway

Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.




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