308 Ga. 847
FINAL COPY
S20A0185. SHEALEY v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Dextreion Shealey and his co-defendant Kelvin
Hurston were found guilty of felony murder and other crimes in
connection with the gang-related shooting death of Daven Tucker.
Appellant’s only contention in this appeal is that the trial court
abused its discretion by excluding from evidence statements that his
co-indictee Charles Lovelace made during Lovelace’s guilty plea
hearing. Seeing no error, we affirm.1
1 Tucker was killed on December 17, 2016. On March 16, 2017, a Troup
County grand jury indicted Appellant, Hurston, Lovelace, Shawndarious
Sands, Coty Green, Natori Lee, Dantavious Rutledge, Zachary Holloway, and
Andre Gilliam for a series of allegedly gang-related crimes. Green, Lee,
Rutledge, Holloway, and Gilliam pled guilty. On April 10, 2018, Appellant,
Hurston, Lovelace, and Sands were reindicted, individually and as parties, for
felony murder based on aggravated assault, aggravated assault, and
participating in criminal street gang activity under OCGA § 16-15-4 (a).
Appellant, Lovelace, and Sands were also indicted for a gang-related count
under OCGA § 16-15-4 (b). Hurston, Lovelace, and Sands were indicted for one
count each of possession of a firearm during the commission of a felony and for
various crimes related to a shooting at a Troup County park earlier on the
night of the murder.
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 17, 2016, Appellant, Hurston, Lovelace,
Shawndarious Sands, Coty Green, Natori Lee, Lee’s brother Kouri,
Dantavious Rutledge, Zachary Holloway, Andre Gilliam, and
Essence Todd — all of whom were connected to a criminal street
gang from West Point called “4way” — attended a memorial
celebration for a friend who had died.2 After the memorial, the group
and a few other people decided to go to LaGrange. They drove there
in a caravan of cars that included among others Appellant’s Ford
Lovelace and Sands then pled guilty, and Appellant and Hurston were
tried together beginning on April 16, 2018. Green, Lee, Rutledge, Holloway,
and Gilliam all testified for the State. On April 23, the jury found Appellant
not guilty of violating OCGA § 16-15-4 (b) but guilty of felony murder,
aggravated assault, and the gang activity count under OCGA § 16-15-4 (a); the
jury found Hurston guilty of all charges against him. The trial court sentenced
Appellant to serve life in prison for murder and 20 concurrent years for the
gang activity conviction; the aggravated assault count merged. Without filing
a motion for new trial, Appellant filed a timely notice of appeal, and the case
was docketed to this Court’s term beginning in December 2019 and submitted
for decision on the briefs. The record does not show what happened to
Hurston’s case after trial; no appeal by him has come to this Court.
2 The State presented testimony from Kouri (whose case was adjudicated
in juvenile court) and an expert on gangs, as well as photos and video
recordings, to establish that 4way was a gang, that all of these individuals were
members of or associated with the gang, and that Appellant was a member.
Mustang, Green’s Honda Accord, and Todd’s Hyundai Sonata.
Appellant and a few others in the caravan stopped at a jail in
LaGrange to put money in an inmate’s account and then at a gas
station before proceeding to a nearby public housing complex. A
surveillance video recording of the complex’s parking lot showed
that Appellant’s Mustang and the other cars in the caravan were at
the complex from 9:53 to 9:59 p.m.
According to Green, there was an ongoing “beef” between 4way
and a LaGrange group called “Mob,” and the people in the caravan
decided to drive to Granger Park to see if any Mob associates were
hanging out there. Surveillance video recordings from the park
showed that at 10:03 p.m., Appellant’s Mustang and the rest of the
caravan of cars entered a parking lot where dozens of people had
gathered. According to several witnesses who were in the park,
gunshots rang out from some of the cars in the caravan. One of those
witnesses heard return fire from some of the people in the parking
lot; several people in the caravan, however, testified that the people
in the parking lot began shooting first. The park surveillance video
showed that the caravan left as people in the parking lot ran away.
Investigators later found 39 shell casings in the parking lot.
Remarkably, no one was injured during the shooting.
The surveillance video from the housing complex showed that
at 10:07 p.m., Appellant’s Mustang and the rest of the caravan
returned to the parking lot there. Appellant’s Mustang had a bullet
hole in the passenger door, and according to several members of the
caravan, Appellant was angry because his car had been hit.
According to Kouri, he received information that Mob members
had shot at the caravan. He relayed that information to the group
at the housing complex, and Green said that he knew the location of
a house where some Mob members lived. According to Lee,
Appellant suggested that they go to the house, which was on
Newnan Street, saying that he “wanted some get back.” Green
testified that Appellant said, “Somebody’s got to pay. My car just got
shot,” and “What y’all want to do? Somebody’s got to get it.” Green
explained that he, Appellant, Hurston, Lovelace, Sands, Lee, and
Kouri planned to shoot up Daven Tucker’s house — the house on
Newnan Street — because Tucker was a member of Mob.3 Appellant
told another caravan member to drive Appellant’s Mustang back to
West Point, and Gilliam, Todd, and other people in the caravan then
drove back there. Appellant got in the Accord with Green, Lovelace,
Lee, and Kouri, while Hurston, Sands, Rutledge, and Holloway got
in the Sonata. Kouri testified that everyone who got in the Accord
and the Sonata knew about the plan to shoot up Tucker’s house; Lee
also testified that he, Appellant, Green, and Lovelace knew about
the plan.
Green and Lee testified that on the way to Newnan Street,
Green pulled the Accord over so that he could switch from the
driver’s seat to the passenger’s seat because he “wanted to be a
shooter.” According to Green, Appellant also planned to shoot, but
while they were in the Accord, Lovelace took a gun that Appellant
was holding and said, “No, you’re going to school. Let me take care
3 In addition, Kouri testified that Green and Lovelace discussed
“retaliation” and that the plan was to shoot up the house. Holloway also
testified that the plan was to “go shoot somebody up” for “[r]etaliation,” and
Rutledge and Todd testified that there was discussion about “retaliation.”
of that for you.”4
The Accord and the Sonata were parked near Newnan Street,
and Hurston, Green, Lovelace, and Sands got out of the cars.
Hurston had a big, black handgun; Green had a .40-caliber gun;
Lovelace carried a nine-millimeter gun or a .380 pistol, and Sands
carried a nine-millimeter gun. Green testified that he, Hurston,
Lovelace, and Sands started shooting toward the house; Green shot
once and then got back in the Accord as the three other men
continued to shoot. Green and Lee heard return gunfire from the
direction of the house.5 Lovelace then got back in the Accord;
Hurston and Sands got in the Sonata; and both cars fled.
Tucker, who had been in the front yard of his house, was shot
once in his chest. Emergency responders arrived minutes later,
around 11:00 p.m., and took Tucker to a hospital, where he soon died
4 Kouri also testified that Lovelace said that Appellant did not need to
shoot because he was going to college. Kouri claimed that Appellant did not
have a gun, but when he was asked by Lovelace to retrieve a gun from under
one of the car seats and give it to Lovelace, Appellant did so. Lee testified that
Lovelace told Appellant, “You’re going back to school. I’ll do it,” that Appellant
never held a gun, and that Appellant did not give Lovelace a gun.
5 Lee, Kouri, Rutledge, and Holloway, who had stayed in the cars along
with Appellant, testified that they heard gunshots but did not see who shot.
from the gunshot wound. Investigators later found 34 nine-
millimeter shell casings, five .380 shell casings, and one .40-caliber
shell casing at the scene.
The nine 4way members and associates in the Accord and
Sonata all eventually went to a motel in Alabama.6 Green, Lovelace,
and Kouri were arrested there the next day, December 18.7 In
Green’s Accord, investigators found Green’s .40-caliber gun, an
empty box for nine-millimeter bullets, a nine-millimeter bullet, and
a plastic tray used to hold ammunition.
Appellant and Hurston did not testify at their trial. Appellant’s
theory of defense was that he was merely present in Green’s Accord
when other members of the group shot toward Tucker.
Appellant does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in accordance
6 Lee and Kouri, as well as Todd and another caravan member (who both
met the others at the motel), testified that Appellant was at the motel that
night. Holloway testified that he did not see Appellant at the motel.
7 Lee was arrested on December 20; Rutledge was arrested on December
22; Hurston and Holloway were arrested about two months later. The record
does not specify when Appellant and Sands were arrested.
with this Court’s general practice in murder cases, we have reviewed
the record and conclude that, when viewed in the light most
favorable to the verdicts, the evidence presented at trial and
summarized above was sufficient to authorize a rational jury to find
Appellant guilty beyond a reasonable doubt of the crimes of which
he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (
99 SCt
2781, 61 LE2d 560) (1979). See also Vega v. State,
285 Ga. 32, 33
(
673 SE2d 223) (2009) (“‘It was for the jury to determine the
credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.’” (citation omitted)).
We note in particular that a person who does not directly
commit a crime may nevertheless be convicted as a party to that
crime. OCGA § 16-2-20 (a) says that anyone “concerned in the
commission of a crime is a party thereto and may be charged with
and convicted of commission of the crime[,]” and OCGA § 16-2-20 (b)
explains that a person is “concerned in the commission of a crime” if
he, among other things, “[i]ntentionally aids or abets” the
commission of the crime or “[i]ntentionally advises, encourages,
hires, counsels, or procures” another person to commit the crime.
And while mere presence at the crime scene is insufficient to make
someone a party to the crime, “‘[a] jury may infer a common criminal
intent from the defendant’s presence, companionship, and conduct
with another perpetrator before, during, and after the crimes.’”
Carter v. State, 308 Ga. __, __ (__ SE2d __) (2020) (citation omitted).
In this case, although the evidence indicated that Appellant did not
shoot Tucker, there was ample evidence from which the jury could
find that Appellant aided, abetted, and encouraged the crimes and
that he shared a common criminal intent with his 4way colleagues
who did shoot at and kill Tucker, making Appellant guilty rather
than merely present when the crimes occurred. See, e.g., Williams
v. State,
307 Ga. 689, 690-691 (
838 SE2d 314) (2020) (explaining that
the evidence presented at trial was legally sufficient to prove that
the appellant, who did not shoot the victim, was guilty as a party to
the murder and not merely present at the crime scene).
2. Appellant’s only contention is that the trial court abused its
discretion by excluding from evidence statements Lovelace made
during his guilty plea hearing. We disagree.
(a) After the State rested its case-in-chief, the trial court asked
Appellant’s counsel outside the presence of the jury if the defense
was going to put on a case. Counsel replied that it depended on
whether Lovelace would testify. Lovelace, who had pled guilty but
had not yet been sentenced, was then brought into the courtroom,
where he told the court that he did not wish to testify and wanted to
assert his privilege against self-incrimination under the Fifth
Amendment to the United States Constitution. The trial court ruled
that Lovelace was therefore “unavailable” as a witness.
Appellant’s counsel then proffered that during Lovelace’s
guilty plea hearing, the prosecutor asked, “Is it truthful that
[Appellant] was present in the car?” and Lovelace testified, “Yes.”
Counsel also proffered that during the plea hearing, the prosecutor
asked Lovelace, “Is it my understanding that your testimony would
be that [Appellant] was there but he wasn’t shooting a gun at
Newnan Street?” Counsel argued that those portions of the plea-
hearing transcript would support Appellant’s “mere presence”
defense. Counsel acknowledged that Lovelace’s plea-hearing
statements were hearsay, but argued that the statements were
admissible under OCGA § 24-8-804 (b) (1), the prior-testimony
exception to the hearsay rule.8 In response, the prosecutor argued
that the statements did not come within the prior-testimony
exception because he did not have an opportunity and similar motive
to develop Lovelace’s testimony at the plea hearing, as he “was only
doing enough to create a record” for the guilty pleas, not seeking to
cross-examine Lovelace.
The trial court then ruled that the statements were not
admissible under the prior-testimony exception, noting that the
purpose of the prosecutor’s questioning Lovelace at the plea hearing
was simply “to get the plea done.” The court also found that the
evidence that Appellant’s counsel was attempting to introduce
through Lovelace’s plea-hearing statements had already been
presented to the jury “in other ways.”
8 Counsel also asserted that the statements were admissible under
another exception to the hearsay rule, but Appellant does not raise that
argument on appeal.
(b) Appellant correctly recognizes that the statements
Lovelace made during his plea hearing are hearsay. See OCGA § 24-
8-801 (c) (defining “[h]earsay” as an out-of-court statement that a
party offers into evidence “to prove the truth of the matter asserted”
in the statement). See also OCGA § 24-8-802 (“Hearsay shall not be
admissible except as provided by this article [of the Evidence Code]
. . . .”). Appellant maintains, however, that the statements come
within the prior-testimony exception to the hearsay rule, OCGA §
24-8-804 (b) (1), which says in pertinent part:
(b) The following shall not be excluded by the hearsay
rule if the declarant is unavailable as a witness:
(1) Testimony given as a witness at another hearing
of the same or a different proceeding . . . , if the party
against whom the testimony is now offered . . . had
an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination. .
..
As both parties acknowledge, Lovelace’s invocation of his Fifth
Amendment privilege against compelled self-incrimination, once
accepted by the trial court, made him “unavailable as a witness.” See
OCGA § 24-8-804 (a) (1) (explaining that a hearsay declarant is
‘unavailable as a witness’ if he “[i]s exempted by ruling of the court
on the ground of privilege from testifying concerning the subject
matter of the declarant’s statement”). See also Mitchell v. United
States, 526 U.S. 314, 326 (
119 SCt 1307, 143 LE2d 424) (1999)
(holding that a defendant’s Fifth Amendment privilege against self-
incrimination is not extinguished by the entry of a guilty plea but
rather may be asserted at least until sentencing). The parties also
correctly agree that Lovelace’s plea-hearing statements qualify as
“[t]estimony given [by him] at another hearing of the same or a
different proceeding[.]” OCGA § 24-8-804 (b) (1). Thus, the issue in
this case is whether the State — the party against whom Lovelace’s
prior testimony was offered at Appellant’s trial — had “an
opportunity and similar motive” to develop Lovelace’s testimony at
his plea hearing. Id. We will assume without deciding that the State
had an opportunity to develop Lovelace’s testimony at the plea
hearing, because we conclude that the State did not have a similar
motive to do so.
OCGA § 24-8-804 (b) (1) is materially identical to Federal Rule
of Evidence 804 (b) (1). See State v. Hamilton, 308 Ga. 116, 121 (
839
SE2d 560) (2020). We therefore look to the decisions of the federal
appellate courts for guidance in construing and applying the rule.
See
id. And the federal appellate courts that have considered the
similar-motive requirement in Federal Rule 804 (b) (1) under
circumstances like the ones in this case have consistently held that
the government does not have a similar motive to develop testimony
at a co-defendant’s plea hearing as it does at the appealing
defendant’s trial. See, e.g., United States v. Oyorzaval-Vera,
184
Fed. Appx. 398, 399 (5th Cir. 2006); United States v. Preciado,
336
F3d 739, 746 (8th Cir. 2003); United States v. Jackson,
335 F3d 170,
178 (2d Cir. 2003); United States v. Powell, 894 F2d 895, 901 (7th
Cir. 1990); United States v. Lowell, 649 F2d 950, 965 (3d Cir. 1981).
The prosecutor’s motive in questioning Lovelace at the plea
hearing was to establish that Lovelace’s guilty pleas were
voluntarily entered and that there was a sufficient factual basis for
them. See Preciado, 336 F3d at 746 (holding that the government
did not have a similar motive to elicit a co-defendant’s testimony at
his plea hearing because “[t]he government’s motive at [the] hearing
was to ensure that the plea was knowing, voluntary, and intelligent
and that there was an adequate factual basis to accept it”); Lowell,
649 F2d at 965 (explaining that the government had “no similar
motive or interest” to develop a co-defendant’s testimony at his plea
hearing because the government’s “only motive . . . was to assure
that the plea was voluntary and that a factual basis existed for the
plea”). The prosecutor briefly examined Lovelace about who was
present at the crime scene when he and others shot at Tucker, but
the prosecutor had no need at the plea hearing to develop testimony
specifically about Appellant. Indeed, the ultimate responsibility for
ensuring that guilty pleas are voluntarily entered and factually
supported lies with the judge, not the prosecutor. See Uniform
Superior Court Rules 33.7, 33.8, and 33.9. See also Powell, 894 F2d
at 901.
By contrast, if Lovelace had testified for the defense at
Appellant’s trial, the prosecutor’s motive would have been to test
Lovelace’s credibility. The prosecutor would have been particularly
interested in developing testimony about Appellant’s interactions
with Lovelace and the other co-defendants before, during, and after
the fatal shooting and attempting to discredit any testimony
Lovelace might have given suggesting that Appellant was not a
party to the murder. Thus, the State did not have a similar motive
to develop Lovelace’s testimony at his plea hearing as it had at
Appellant’s trial, and the trial court’s ruling that Lovelace’s plea-
hearing statements were not admissible under OCGA § 24-8-804 (b)
(1) was not an abuse of discretion.
Moreover, even if the plea-hearing statements had been
admissible, any error in their exclusion was entirely harmless. As
the trial court noted, Lovelace’s proffered statements — that
Appellant was present in the car with him at the crime scene but
was not a shooter — were cumulative of properly admitted
testimony from several witnesses at trial that Appellant was present
in the Accord but did not shoot at Tucker. But those statements, like
that testimony, did not prove that Appellant was not a party to the
crimes. See, e.g., Williams, 307 Ga. at 690-691. Thus, it is highly
probable that the exclusion of Lovelace’s statements did not
contribute to the jury’s guilty verdicts. See Reaves v. State,
292 Ga.
545, 548 (
739 SE2d 368) (2013) (holding that the alleged erroneous
exclusion of evidence was harmless because it was cumulative of
other evidence admitted at trial).
Judgment affirmed. All the Justices concur.
DECIDED JUNE 1, 2020.
Murder. Troup Superior Court. Before Judge Palmer.
Jackie G. Patterson, for appellant.
John H. Cranford, Jr., District Attorney, John C. Winne,
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.
