Kitchens v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion. In the Supreme Court of Georgia No. S26A0799 Deonte Kitchens v. The State On Appeal from the Superior Court of Bibb County No. 2015CR073134 Decided: September 9, 2026 WARREN, Presiding Justice. Appellant Deonte Kitchens was convicted of malice mur- der, three counts of violating the Street Gang Terrorism and Pre- vention Act (the “Gang Act”), and other crimes in connection with the shooting death of Alveno Culver. The trial court denied his motion for new trial, and in a prior appeal, he contended, among other things, that the State violated his constitutional right to a speedy trial. We concluded that the trial court’s ruling with re- spect to that claim was based on a clearly erroneous finding about a material fact, as well as several misapplications of law; we therefore vacated in part the trial court’s order denying Kitch- ens’s motion for new trial and remanded the case for the court to properly address the speedy trial claim. See Kitchens v. State, 322 Ga. 169, 178 (2025) (Kitchens I). We did not address Kitch- ens’s other claims. See id. at 169 n.2. On remand, the trial court issued an order again rejecting the speedy trial claim and denying Kitchens’s motion for new trial. He then filed this second appeal, raising his constitutional speedy trial claim again, along with claims that the evidence pre- sented at trial was not constitutionally sufficient to support his convictions for violating the Gang Act, the State failed to disclose to the defense a witness’s statement before trial, and his trial counsel provided constitutionally ineffective assistance. As ex- plained below, we affirm. 1 1. As pertinent to Kitchens’s contentions on appeal, the ev- idence presented at trial showed the following. On October 29, 2011, Kitchens and several of his associates went to Little Short Street in Macon, where hundreds of people had gathered for a “party,” as well as a “meeting” of members of the Gangster Disci- ples criminal street gang. Culver, who was not affiliated with a gang, drove his black Crown Victoria to drop off a friend on Little Short Street that afternoon. A witness who knew both Kitchens and Culver testified that after Culver pulled up on Little Short Street and dropped off the friend, Kitchens and several of his associates approached the Crown Victoria, and someone asked Culver if he was from the “Kings Park” area of Macon. The witness then heard a gunshot and saw Kitchens holding a gun. 2 Kitchens, his associates, and the other people on Little Short Street fled. Someone called 911, 1 The procedural history of this case is summarized in Kitchens I. See 322 Ga. at 169 n.1. After the trial court denied Kitchens’s motion for new trial again on remand in January 2026, he filed a timely notice of appeal, and the case was docketed to the April 2026 term of this Court and submitted for a decision on the briefs. 2 The witness initially told investigators during an interview a few days after the shooting and during another interview in November 2012 that she had no knowledge of the shooting. In April 2016, after she was arrested on charges unrelated to this case, she provided investigators a statement con- sistent with her testimony at trial that she saw Kitchens holding a gun just after Culver was shot. 2 and first responders found Culver, who had been shot once in the chest, dead in the driver’s seat of the Crown Victoria. Several days after the shooting, on November 2, 2011, a different witness identified Kitchens as the shooter during an in- terview with investigators. 3 Investigators arrested Kitchens the next day, November 3, 2011. At some point after the shooting, Culver’s cousin LaJohn Stephens overheard Kitchens say, “I told that n**ger to leave and he didn’t want to leave, so I shot his a**.” Stephens believed that Kitchens was referring to Culver. In addition, about two years after the shooting, one of Kitchens’s friends told investigators the following during an in- terview, which was recorded and played for the jury at trial. On the day of the murder, he was hanging out with Kitchens on Little Short Street when Culver’s black Crown Victoria pulled up. The friend and Kitchens thought they recognized the car from an in- cident about a week earlier, in which some men from Kings Park had shot from a dark-colored Crown Victoria toward a “trap house” where Kitchens often sold drugs. Believing that Culver, whom Kitchens did not know, was involved in that shooting, Kitchens and several of his associates approached the Crown Vic- toria and asked Culver if he was from Kings Park. Moments later, Kitchens shot Culver, using a gun that “had a beam on it.”4 Another friend of Kitchens gave investigators a similar account of the shooting during an interview in June 2016, saying that after someone asked Culver about “Kings Park,” the friend heard a 3 This witness testified at trial that he did not see the shooting. 4 At trial, the friend initially refused to answer the prosecutor’s ques- tions and eventually denied that Kitchens was on Little Short Street that day. He testified that he lied in his statement to investigators because there was “a lot of pressure on [him].” 3 gunshot and then saw Kitchens holding a revolver.5 The State also presented evidence showing that Kelvin Carswell—Kitch- ens’s cousin and the leader of a criminal street gang known as Get Dat Money (“GDM”)—gave a revolver to a friend sometime after the shooting; in January 2015, investigators, with the help of Car- swell’s former girlfriend, obtained the revolver, which was capa- ble of emitting a “laser type beam”; and testing later showed that it fired a bullet that was removed from Culver’s body during his autopsy. The State’s gang expert testified that Kitchens and Car- swell were members of GDM, which had about 50 to 60 members, “deal[t] mostly in drugs,” and was affiliated with the Gangster Disciples. He explained that both GDM and the Gangster Disci- ples used a “Star of David” and a “pitchfork” as “signs.” He also testified that gangs typically operate in a specific neighborhood; there are “rivalries between different gangs or neighborhoods”; and “retaliation [is] part of gang life.” In addition, the State presented evidence that Kitchens’s phone number sent text messages that said “GDM-or-nun,” “jst stick 2da motto (GDM)-or nun,” and “G.D.M. 4LIFE AND AFTER DEATH.” Investigators also found a drawing showing the letters “GDM” among Kitchens’s belongings at his grandmother’s house. Moreover, several other witnesses testified that Kitchens was a member of or associated with GDM and that he sold drugs at the 5 This friend testified at trial that although Kitchens was part of the group that approached Culver’s Crown Victoria, he did not see Kitchens with a revolver. In addition, two other friends of Kitchens testified for the State. One stated that on the day of the shooting, several people who operated the “trap house” “want[ed] some payback” and that Kitchens was part of the group that approached Culver’s car; the other friend said that he did not see Kitchens on Little Short Street that day. 4 “trap house.” 2. Kitchens contends that the State violated his constitu- tional right to a speedy trial. That claim is analyzed under the two-part framework set forth in Barker v. Wingo, 407 US 514 (1972), and refined in Doggett v. United States, 505 US 647 (1992). See Kitchens I, 322 Ga. at 169–70. The first part of the framework requires the trial court to determine whether the delay at issue was sufficiently long to be considered presumptively prejudicial. See id. at 170. If it was, the trial court is required under the sec- ond part of the framework to apply a four-factor balancing test that examines the length of the delay; the reasons for the delay; the defendant’s assertion of his right to a speedy trial; and whether he suffered prejudice as a result of the delay. See id. In the first appeal of this case, we held that a presumption of prejudice arose under the first part of the Barker framework, but we concluded that the trial court misapplied the law and made a clearly erroneous finding of fact in its analysis of the sec- ond part of the framework. Specifically, we concluded that as to the length-of-the-delay factor, the trial court misapplied the law because the court failed to expressly calculate the length of the delay, conflated the distinct analyses of presumptive prejudice and the length of the delay, and failed to consider whether the length of the delay was uncommonly long. See Kitchens I, 322 Ga. at 172. And with respect to the assertion-of-the-right factor, we determined that the trial court’s finding that Kitchens “‘never in- voked his right to demand a speedy trial’” was clearly erroneous because Kitchens’s pretrial counsel had filed a constitutional speedy trial demand. Id. at 175. Accordingly, we vacated in part the trial court’s order denying Kitchens’s motion for new trial and remanded the case for the court to properly address the speedy trial claim. See id. at 178. 5  In its order on remand, the trial court corrected the misap- plications of law and the clearly erroneous factual finding that we identified in Kitchens I and, after balancing the four Barker fac- tors, ultimately rejected Kitchens’s speedy trial claim again. Af- ter reviewing the trial court’s order, the record, and the parties’ appellate briefs, we now conclude that the trial court did not abuse its broad discretion by determining that Kitchens’s consti- tutional right to a speedy trial was not violated. See, e.g., Wil- liams v. State, 314 Ga. 671, 679 (2022) (explaining that “we give deference to the trial court’s findings and conclusions unless we find it abused its substantial and broad discretion” (quotation marks omitted)); Goins v. State, 310 Ga. 199, 201 (2020) (noting that when we review a speedy trial claim, we defer to the trial court’s ultimate conclusion unless it amounts to an abuse of dis- cretion); State v. Buckner, 292 Ga. 390, 393 (2013) (explaining that the trial court’s weighing of the Barker factors “is committed to the substantial discretion of the trial court, and its ultimate judgment is reviewed on appeal only for an abuse of that discre- tion” (quotation marks omitted)). 6 3. Kitchens also claims that the evidence presented at his trial was not constitutionally sufficient to support his convictions 6 Kitchens argues in his appellate brief that the trial court on remand abused its discretion by weighing the length-of-the-delay factor “only slightly” against the State, but under the circumstances, we cannot say that the court’s weighing of this factor amounts to an abuse of its substantial discretion. See McCullum v. State, 318 Ga. 485, 495–96 (2024). As to the remaining Barker factors, Kitchens’s brief raises arguments that we already expressly rejected in Kitchens I. Under the law-of-the-case doctrine, our holdings in Kitchens I are binding here. See OCGA § 9-11-60(h); Redding v. State, 320 Ga. 107, 112 (2024). 6 for violating the Gang Act. 7 We disagree. In evaluating a challenge to the sufficiency of the evidence as a matter of constitutional due process, we view all of the evi- dence presented at trial in the light most favorable to the verdicts and consider whether any rational juror could have found the de- fendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 US 307, 319 (1979). “This limited review leaves to the jury the resolution of conflicts in the evidence, the weight of the evidence, the credibil- ity of witnesses, and reasonable inferences to be made from basic facts to ultimate facts.” Rooks v. State, 317 Ga. 743, 751 (2023) (quotation marks omitted). To establish that Kitchens participated in criminal street gang activity under OCGA § 16-15-4(a), the State was required to prove four elements: (1) the existence of a “criminal street gang,” defined in former OCGA § 16-15-3(2), which applied at the time of Kitchens’s trial in September 2016, as “any organization, asso- ciation, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang ac- tivity”; (2) the defendant’s association with the gang; (3) that the defendant committed any of the criminal offenses enumerated in former OCGA § 16-15-3(1), including those involving “violence, possession of a weapon, or use of a weapon”; and (4) that the crime was intended to further the interests of the gang. See, e.g., Dixon 7 In his appellate brief, Kitchens frames this enumeration of error as a claim that gang evidence was “wrongfully presented,” but he makes no argu- ments about the admissibility of the evidence and instead asserts only that the evidence supporting his convictions for violating the Gang Act was not consti- tutionally sufficient. We therefore construe this claim as a challenge to the sufficiency of the evidence. 7 v. State, 309 Ga. 28, 33 (2020). 8 Kitchens argues that the State failed to prove the first, second, and fourth elements. With respect to the first element, the existence of a “crimi- nal street gang,” the State’s gang expert testified at trial that GDM had about 50 to 60 members and “deal[t] mostly in drugs.” See former OCGA § 16-15-3(1)(A) (defining “[c]riminal gang activ- ity” as the commission of “[a]ny offense defined as racketeering activity,” which includes the commission of a crime under the Georgia Controlled Substances Act). The expert also testified that GDM was associated with the Gangster Disciples gang and shared with that gang the common identifying signs of the “Star of David” and a “pitchfork.” See former OCGA § 16-15-3(2) (providing that the existence of a criminal street gang “may be established by evidence of a common name or common identifying signs [or] symbols,” among other things). As to the second element, the defendant’s association with the gang, the gang expert testified that Kitchens was a member of GDM, and several witnesses testified that Kitchens was a member of, or associated with, GDM. Moreover, the State pre- sented evidence showing that Kitchens’s phone number sent text messages promoting GDM and that investigators found a draw- ing referencing GDM among Kitchens’s belongings. See, e.g., Rooks, 317 Ga. at 753 (holding that evidence that the defendant sent an email using symbols and terminology typically used by the Gangster Disciples was sufficient to show his association with the gang). Finally, with regard to the fourth element, that the crime 8 OCGA § 16-15-3 was amended in 2019. The amendment added the word “the” to subsection (1) and moved the text of former subsection (2) to sub- section (3). See Ga. L. 2019 at 81, § 4. 8 was intended to further the interests of the gang, the State pre- sented evidence showing that Kitchens and his associates be- lieved that Culver was one of the men from the Kings Park area who shot at the trap house where Kitchens sold drugs and that Kitchens shot Culver to retaliate for that shooting. And the gang expert testified that gangs like GDM typically have rivalries with other gangs that operate in different neighborhoods and that re- taliation is a common “part of gang life.” See, e.g., Dixon, 309 Ga. at 34 (holding that evidence that the defendant killed the victim to retaliate against the victim’s friend for disrespecting the gang sufficiently established that the crime was intended to further the interests of the gang); Jackson v. State, 306 Ga. 706, 709–10 (2019) (concluding that evidence showing that the defendant shot and killed a rival gang member in retaliation for his having shot at a member of the defendant’s gang was sufficient to prove that the crime furthered the gang’s interests). In sum, the evidence presented at trial supported the jury’s findings that GDM was a criminal street gang, that Kitchens was associated with the gang, and that he killed Culver to further the gang’s interests. Thus, Kitchens’s claim that the State failed to prove those elements of the Gang Act beyond a reasonable doubt fails. See Jackson, 443 US at 319. 4. Kitchens contends that before trial, the State failed to disclose to the defense oral statements Stephens made to an in- vestigator and to the prosecutor, in which Stephens said that he overheard Kitchens say, “I told that n**ger to leave and he didn’t want to leave, so I shot his a**.” Because the State was not re- quired to disclose that evidence, this claim fails. Although OCGA § 17-16-7 requires the State to produce to the defense “[n]o later than ten days prior to trial or at such time as the court permits” “any statement of any witness that is in the 9 possession, custody, or control of the state … that relates to the subject matter concerning the testimony of the witness,” we have held that “[t]his statutory obligation is not triggered when a wit- ness merely makes an oral statement.” Forehand v. State, 267 Ga. 254, 255 (1996), overruled on other grounds by State v. Lane, 308 Ga. 10 (2020). That is because “[t]here can be no ‘possession, custody, or control’ of a witness’[s] statement which has neither been recorded nor committed to writing.” Id. Because Stephens’s statements to the investigator and prosecutor were oral—not written—the State was not required under OCGA § 17-16-7 to disclose them to the defense. See id. See also Hunt v. State, 278 Ga. 479, 480 (2004); Holmes v. State, 275 Ga. 853, 855 (2002). 9 5. Finally, Kitchens asserts that his trial counsel provided constitutionally ineffective assistance by failing to thoroughly cross-examine Stephens and by failing to retain a gang expert to testify for the defense. To prevail on these claims, Kitchens must establish that trial counsel’s performance was constitutionally de- ficient and that he suffered prejudice as a result. See Strickland v. Washington, 466 US 668, 687 (1984); Rosenau v. State, 321 Ga. 299, 307 (2025). To prove deficient performance, Kitchens must show that counsel “performed at trial in an objectively unreason- able way considering all the circumstances and in the light of pre- vailing professional norms.” Rosenau, 321 Ga. at 307 (quotation marks omitted). See also Strickland, 466 US at 687–91. Because 9 To the extent that Kitchens argues that the State violated Brady v. Maryland, 373 US 83 (1963), by failing to disclose Stephens’s statements, even assuming that such a claim is preserved for appellate review, it fails. To pre- vail on a Brady claim, a defendant must show, among other things, that the allegedly suppressed evidence was “favorable” to the defendant. See, e.g., An- glin v. State, 312 Ga. 503, 510 (2021). The evidence that Stephens told an investigator that he overheard Kitchens indicate that he shot Culver does not satisfy that requirement. 10 “[t]he law recognizes a strong presumption that counsel per- formed reasonably,” Kitchens “must show that no reasonable law- yer would have done what his lawyer did, or would have failed to do what his lawyer did not.” Rosenau, 321 Ga. at 307 (quotation marks omitted). To that end, “decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.” Rosenau, 321 Ga. at 307 (quotation marks omitted). To prove prejudice, Kitchens must es- tablish a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. See Strickland, 466 US at 694. We need not address both parts of the Strickland test if Kitchens does not meet his burden of establish- ing one. See Strickland, 466 US at 697; Rosenau, 321 Ga. at 307. As discussed below, Kitchens has not established that trial coun- sel was deficient in the ways he alleges, so his ineffectiveness claims fail. (a) Kitchens first claims that trial counsel was ineffective for failing to thoroughly cross-examine Stephens. In support of this claim, Kitchens points out that before opening statements at trial, counsel—in arguing that the State failed to disclose Ste- phens’s oral statements to the investigator and prosecutor—as- serted that she was not prepared to cross-examine Stephens. The record shows, however, that when Stephens took the stand, trial counsel extensively cross-examined him and under- mined his credibility. In this respect, counsel elicited Stephens’s testimony that he was very “close” to Culver; Stephens used crack cocaine daily in the months after the shooting; and he was pur- chasing crack cocaine when he heard Kitchens discuss the shoot- ing. Counsel also cross-examined Stephens about his crack co- caine use in an attempt to show that it negatively affected his 11 memory. And at the hearing on Kitchens’s motion for new trial, trial counsel testified that she did not believe that she should have “asked any different or other questions, or been any more prepared” during the cross-examination. “In the absence of evidence to the contrary, counsel’s deci- sions are presumed to be strategic and thus insufficient to support an ineffective assistance of counsel claim.” Kirkland v. State, 318 Ga. 639, 648 (2024) (quotation marks omitted). And decisions about “what questions to ask on cross-examination are quintes- sential trial strategy and will not constitute ineffective assistance unless they are so patently unreasonable that no competent at- torney would have chosen that approach.” Id. The record shows that trial counsel’s strategic decisions related to Stephens’s cross- examination were not objectively unreasonable. Among other things, she thoroughly cross-examined Stephens and attempted to cast doubt on the testimony he had given implicating Kitchens, highlighting Stephens’s close relationship with Culver and Ste- phens’s drug use. Kitchens does not specify in his appellate brief what additional questions trial counsel should have asked Ste- phens; he did not introduce any evidence at the motion for new trial hearing as to what Stephens would have said in response to any additional questions; and he has not met his burden of estab- lishing that trial counsel performed deficiently in cross-examin- ing Stephens. See, e.g., id. (holding that the appellant failed to show that trial counsel performed deficiently (or that he was prej- udiced) by counsel’s failure to ask a witness additional questions during cross-examination, because counsel attempted during cross to “cast doubt on [the witness’s] identification [of the appel- lant] and challenge the completeness of the State’s investigation” and the appellant failed to introduce evidence at the motion for new trial hearing showing what the witness would have said in response to the unasked questions). See also Monroe v. State, 324 12 Ga. 323, 334 (2026) (concluding that the appellant did not estab- lish that trial counsel performed deficiently by failing to ask a witness certain questions on cross-examination because the ap- pellant provided no evidence suggesting that such questions would have helped his defense); Maynor v. State, 317 Ga. 492, 502–03 (2023) (holding that the appellant did not establish that trial counsel performed deficiently in cross-examining a witness, partly because counsel “effectively questioned [the witness’s] credibility”). (b) Kitchens also claims that trial counsel was ineffective for failing to retain a gang expert to counter testimony from the State’s gang expert. At the motion for new trial hearing, Kitchens presented testimony from a gang expert to show how such an ex- pert could have rebutted the State’s gang evidence at trial. And trial counsel testified at the hearing that she simply was “not aware” of such an expert, but she felt “prepared” at trial to deal with the Gang Act charges. In arguing this claim in his appellate brief, Kitchens points out that trial counsel did not testify at the motion for new trial hearing that her failure to obtain a gang expert was strategic. But the test for deficient performance “‘calls for an inquiry into the objective reasonableness of counsel’s performance, not coun- sel’s subjective state of mind.’” Jackson v. State, 318 Ga. 393, 397 (2024) (quoting Harrington v. Richter, 562 US 86, 110 (2011)). In this respect, “[i]f a reasonable lawyer might have done what the actual lawyer did—whether for the same reasons given by the ac- tual lawyer or different reasons entirely—the actual lawyer can- not be said to have performed in an objectively unreasonable way.” Shaw v. State, 292 Ga. 871, 875 n.7 (2013). See also, e.g., State v. Riley, 321 Ga. 323, 328 (2025) (explaining that “the mere fact that present counsel would have pursued a different strategy 13 does not render trial counsel’s strategy unreasonable” (quotation marks omitted)). And “[t]he decision whether to present an ex- pert witness, like other decisions about which defense witnesses to call, is a matter of trial strategy that, if reasonable, will not sustain a claim of ineffective assistance.” Middlebrooks v. State, 310 Ga. 748, 752 (2021) (quotation marks omitted). Here, although the testimony of the expert Kitchens pre- sented at the motion for new trial hearing might have been help- ful to rebut the State’s gang-related evidence at trial, a competent lawyer could have reasonably determined that such expert testi- mony might have emphasized the gang evidence—which was key to the State’s theory that Kitchens shot Culver in retaliation for the earlier shooting involving the men from Kings Park—and that the better strategy was to attack the gang evidence through cross- examining the State’s expert, as counsel did here. In particular, counsel thoroughly questioned the State’s expert about law en- forcement investigation techniques regarding gangs; investiga- tors’ use of signs and symbols to identify alleged gang members; the popularity of such gang symbols in mainstream culture; rival- ries between gangs; and the potential for a gang member to “lie” to law enforcement in an attempt to “set up” a member of a rival gang. Counsel also elicited the investigator’s testimony that alt- hough witnesses are often reluctant to come forward in gang-re- lated cases, that is also often true of witnesses to crimes that do not involve gangs. Under these circumstances, we cannot say that trial coun- sel’s decision not to call a gang expert and to instead attack the State’s expert through cross-examination was so unreasonable that no competent attorney would have chosen such a course. Be- cause Kitchens has not established that counsel performed defi- ciently, this claim of ineffective assistance fails, too. See Rosenau, 14 321 Ga. at 307–08 (holding that trial counsel was not deficient for failing to retain a gang expert to counter the testimony of the State’s gang expert because counsel’s decision to downplay the appellant’s connection to the gang and its crimes through cross- examination, rather than through the use of an expert, was an objectively reasonable strategy); Middlebrooks, 310 Ga. at 752 (concluding that even though expert testimony might have been helpful in rebutting the State’s evidence of gang activity, trial counsel was not deficient for instead challenging the State’s gang evidence in other ways, including through cross-examination). Judgment affirmed. All the Justices concur. 15