In the Supreme Court of Georgia



                                                 Decided: January 20, 2015


                   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.



      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.
Kitchens further claims that trial counsel rendered ineffective assistance. For

the reasons set forth below, we affirm.

      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

      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 ultmately
determined the guilt of only Kitchens and Taylor.
      3
          No evidence was presented at trial regarding the content of this post.
                                         2
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

multiple guns.4 Faulks and Watkins were injured, and Rodgeren Gary, an 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


      4
        Some testimony indicated that a number of the Bloomfield Boys gathered
in the street and also started shooting.
                                        3
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

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.” Ga. Suggested Pattern Criminal

Jury Instruction 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.

                                        4
      It is well-settled that

      a trial court has broad discretion to grant or deny a motion for
      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.” (Footnote and punctuation omitted.) 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,

                                        5
the jury returned a separate verdict for each defendant and considered each

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 towards 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

                                        6
for new trial hearing indicates that the witnesses were brought to trial counsel’s

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.




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