Allen v. State ( 2023 )

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
Decided: February 7, 2023
S22A0962. ALLEN v. THE STATE.
BOGGS, Chief Justice.
After successive jury trials in November 2017 and February
2018, Appellant Broderick Allen was acquitted of participation in
criminal street gang activity, but convicted of malice murder and
related offenses in connection with the shooting deaths of Antony
Jackson and Miguel Hayes. On appeal, Appellant contends that the
evidence was constitutionally insufficient to support his convictions
for the two counts of aggravated assault and two firearm possession
charges arising from the November 2017 trial and for the remaining
convictions arising from the February 2018 trial. He also contends
that the trial court erred by refusing to grant him a new trial under
the exercise of its discretion as a “thirteenth juror”; that the trial
court erred by denying a motion for mistrial made by Appellant
during the November 2017 trial when, according to Appellant, a
witness improperly placed his character into evidence; and that the
trial court erred during the February 2018 trial by permitting, over
Appellant’s objection, the State to improperly bolster the credibility
of a State’s witness. 1
1 The crimes occurred on November 21, 2012. On May 10, 2013, a Fulton
County grand jury indicted Appellant for participation in criminal street gang
activity (Count 1), two counts of malice murder (Counts 2-3), four counts of
felony murder (Counts 4-7), two counts of aggravated assault (Counts 8-9),
possession of a firearm by a convicted felon (Count 10), and possession of a
firearm in the commission of a felony (Count 11). Initially, Appellant was tried
before a jury from November 6 to 15, 2017, and found guilty of the aggravated
assault charges (Counts 8-9) and firearm charges (Counts 10-11). The jury was
unable to reach a verdict on the remaining counts. On January 12, 2018, the
trial court sentenced Appellant on the two aggravated assault counts and the
two firearm counts.
Appellant was retried on the deadlocked counts on a redacted indictment
from February 5 to 13, 2018. The jury acquitted Appellant on the street gang
charge (Count 1) but found him guilty on the remaining six counts: malice
murder (Counts 2-3) and felony murder (Counts 4-7). On February 22, 2018,
the trial court sentenced Appellant as to all the charges of which he was found
guilty at both trials, specifying that the court was resentencing Appellant on
the two aggravated assault counts and the two firearm counts. The court
sentenced Appellant to serve two consecutive life terms in prison for malice
murder, five years in prison for possession of a firearm by a convicted felon,
and a consecutive, suspended term of five years for possession of a firearm
during the commission of a felony. The felony murder counts were vacated by
operation of law, and the trial court merged the aggravated assault counts into
the malice murder convictions.
Although Appellant’s case was not subject to appeal under OCGA § 5-6-
34 (a) based on convictions on only four of the eleven counts of the indictment
at the November 2017 trial, when the trial court entered the final judgment
and sentence on February 22, 2018, resolving all counts of the indictment,
2
We conclude that the evidence is sufficient to sustain
Appellant’s convictions and that the trial court did not err in denying
Appellant’s motion for new trial under the exercise of its discretion
as the “thirteenth juror.” We also conclude that the trial court did
not abuse its discretion in denying the motion for mistrial that
Appellant made during the November 2017 trial and that, even if
the trial court abused its discretion in permitting the State to
improperly bolster the credibility of one of its witnesses during the
February 2018 trial, the error was harmless. We therefore affirm.
Appellant’s case became subject to direct appeal. See Seals v. State, 311 Ga.
739, 743 (860 Ga. 419) (2021) (explaining that a criminal case involving
multiple counts is “one case” and is not considered “fully resolved” and subject
to appeal under OCGA § 5-6-34 (a) (1) until all counts of the indictment are
resolved). On February 26, 2018, Appellant’s trial counsel filed a timely motion
for new trial, which was amended by appellate counsel on February 3, 2020,
June 9, 2020, March 8, 2021, and March 22, 2021. The trial court held hearings
on May 19, 2021 and June 17, 2021, and entered an order denying the motion
on February 25, 2022. A timely notice of appeal was filed on March 24, 2022,
and the case was docketed in this Court for the August 2022 term and
submitted for decision on the briefs.
3
1. Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trials showed the following. 2
Jackson and Hayes were long-time friends who sold drugs together.
In the early afternoon of Wednesday, November 21, 2012, Jackson
and Hayes were shot and killed while sitting in a two-door sedan
parked in the driveway of a vacant house on a dead-end street in
southwest Atlanta. Several local residents witnessed the shooting or
its immediate aftermath, and one called 911. The police arrived
within minutes and found Jackson’s body still buckled in the driver’s
seat, with five bullet wounds to the right side of his face and other
bullet wounds to his right arm, chest, and neck. Hayes was lying
halfway out of the passenger side, face down, with multiple bullet
wounds to his head, chest, and back. The medical examiner testified
that both victims had been shot with bullets of two different sizes,
one of which was a “medium to large caliber handgun bullet” fired
2 The evidence presented at Appellant’s two trials was substantially the
same for purposes of determining the sufficiency of the evidence.
4
from a “standard handgun” and one of which was a “relatively small”
and “high velocity” bullet. The medical examiner described the latter
bullet as one of the most “unusual ammunition [he] ha[d]
encountered in the course of looking at number of gunshot—many
gunshot wound cases over the years.” The victims died from their
wounds.
Police investigators found numerous shell casings, bullets, and
unfired rounds in and around the car. Additional bullets were
recovered from the bodies of Jackson and Hayes. A firearms
examiner testified that two firearms were involved: a Glock .40-
caliber pistol and a “pretty rare” Fabrique Nationale (“FN”) 5.7 x
28mm pistol. Seven spent shell casings from the Glock were found
on the rear floorboard and rear passenger seat of the car, while one
was found between the front driver’s seat and the console. Nine
spent shell casings from the FN were found outside the car and one
was found inside the car. The murder weapons were not recovered.
Yolanda Worthem, who lived next door to the house where the
shooting occurred, testified that at about 2:30 p.m. on November 21,
5
2012, she was in her bedroom when she heard “three or four”
gunshots. She went to her door and “looked out” and “saw one person
firing over into a car.” The shooter “appeared to maybe [have] a
white towel or something on his head.” After he finished firing, he
turned and walked “out of the driveway” and into a nearby “wooded
area.” Because the shooter’s back was turned to Worthem during the
incident, she could not describe the shooter other than to say that
the shooter appeared to be a man. After the shooter left, Worthem
came out of her house and saw three of her neighbors outside,
Priscilla Sheppard and Douglas and Trevor Murphy.
Douglas Murphy testified that on the day of the shooting, he
was inside his house and heard “what we thought were firecrackers.”
He and his son, Trevor, went outside. Douglas testified that he saw
a man “wearing green with white wrapped around his head standing
with his back to us.” Trevor added that the man was black and was
wearing a “green jacket type thing,” with something white “wrapped
around his head.” Douglas and Trevor heard more shots when they
were outside, with Douglas testifying that he “thought [the man]
6
was shooting in the ground.” Douglas added that there may have
been a total of “eight or ten shots.” The man had his back to Douglas
and Trevor; as a result, they could not identify the gunman. After
the shooting, the man “walked into the wooded area” near the house.
Douglas and Trevor both testified that they did not see anyone other
than the shooter during the course of the incident.
Priscilla Sheppard, who was dating a man who lived next door
to Worthem, testified that on the day of the incident, she was
unloading items from her car and taking them into her boyfriend’s
house when she saw Jackson’s car drive down the street. Shortly
thereafter, she heard gunshots. She went to a window inside the
house, looked out, and heard more gunshots. She saw “a man
walking towards that car shooting”; he was wearing “something
white around his head.” Sheppard added the only person that she
saw that was outside at the time of the shooting was the shooter and
that, as she was “going in and out of the house” before the shooting,
she did not see any other car driving down the street or anyone
walking in the street. Like the other witnesses, Sheppard testified
7
that, after the shooting, the man walked into the woods at the end
of the street.
A 911 call regarding the incident was received at 2:32 p.m. One
of the Atlanta police officers who responded to the call noticed a car
following him closely. When the officer arrived at the scene, the car
stopped and Appellant, who was a passenger, got out; he had a bullet
wound to his hand and had a white cloth wrapped around it and
blood on his shirt. Appellant told the officer, “I was in the car too
and he shot me too”; he added that he, Jackson, and Hayes had come
to the house to purchase marijuana. Appellant said he was sitting
in the back seat of the car, parked in the driveway, when a burgundy
four-door sedan pulled up and stopped behind them. A black male
got out, walked up to the car, and shot Jackson and Hayes in the
head. Appellant said that he tried to grab the gun, and the man shot
him in the hand and ran into the woods. Appellant told the officer
that he pushed the passenger seat forward, got out by the passenger-
side door, and ran into the woods as well. Appellant gave a
statement to the police on November 27. In that statement, in
8
contrast to the statements that he made to the officer on the day of
the crime, Appellant attributed the shooting to two men who arrived
at the scene on foot, not by car, with one approaching the vehicle on
the driver’s side and one approaching on the passenger side.
Forensic evidence showed that shortly before the shooting,
which occurred about 2:30 p.m., there were frequent cell phone calls
between Appellant, Jackson, and Hayes. There were
communications between Appellant’s and Jackson’s phones at 12:45
p.m., 1:02 p.m., 1:06 p.m., 1:37 p.m., and 1:58 p.m. Meanwhile, there
were communications between Appellant’s and Hayes’ phones at
1:27 p.m., 1:41 p.m., 1:57 p.m., 2:06 p.m., and 2:18 p.m. In addition,
according to Jeremy Andrews, Appellant called him about a half
hour before the shooting. Andrews’ mother owned the vacant house,
and Andrews would sometimes meet friends at the house. According
to Andrews, Appellant asked Andrews if he was at the house, and
Andrews told him that he was not. Moreover, on the two days
following the shooting, Appellant sent several text messages
attempting to sell a “mini Glock 40.”
9
In addition, a crime scene reconstruction expert testified that
there was a bullet hole in the vehicle’s windshield in front of the
driver and one in the driver’s door window. He added that the
fracturing of the glass indicated that both bullets were fired from
inside the vehicle. He added that a flight-path rod inserted through
the bullet hole in the driver’s window indicated that the bullet had
been fired from the rear seat of the car. Also, because there was no
“bloodstain pattern within the door jam,” the expert opined that the
driver’s door was closed at the time of the shooting. He added that
the crime scene was not consistent with the driver, Jackson, being
shot from outside the vehicle, but that the forensic evidence showed
that Hayes could have first been shot from the backseat of the car
and then, once he had fallen partially out of the car, been shot by
someone standing outside the car.
Hayes’ fiancée, Destinii Knight, testified that Hayes was a
marijuana dealer and a member of the “Crips” gang, that he had
recently purchased an FN pistol, and that on the day of the shooting
he left the house around 2:15 to 2:30 p.m., after having an argument
10
with someone on the phone about “Crips and Bloods.” He took with
him the pistol, a large amount of cash, and three one-pound bags of
marijuana.
Ashley Neff, Appellant’s friend, testified that Appellant was a
member of the “Bloods” gang who sold marijuana, and that
Appellant told her he was a “hit man for hire.” She said that
Appellant always carried two firearms, “[a] .40 and a .45.” She
testified that Appellant suspected that Hayes had stolen a gun from
him and that Appellant told her about an encounter in which he
pulled a gun on Jackson and Hayes and demanded his gun back.
According to Neff, Hayes told Appellant that he did not know who
had taken the pistol but he would give it to Appellant if he found it.
Neff also testified that Appellant typically wore baggy cargo shorts
in which he carried his firearms, an “army fatigue, greenish tan”
trench coat, and a turban, either a white one or a “Jamaican colored”
one.
2. Appellant contends that the evidence was constitutionally
insufficient to support his convictions for malice murder, possession
11
of a firearm by a convicted felon, and possession of a firearm during
the commission of a felony.3 We disagree.
When evaluating the sufficiency of the evidence as a matter of
federal due process, we view the evidence presented at trial in the
light most favorable to the verdicts and consider whether it was
sufficient to authorize a rational trier of fact to find the defendant
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); Moore v. State, 311 Ga. 506, 508 (858 SE2d
676) (2021). This “limited review leaves to the jury the resolution of
conflicts in the evidence, the weight of the evidence, the credibility
of witnesses, and reasonable inferences to be made from basic facts
3To the extent that Appellant claims that the evidence presented at the
November 2017 trial was insufficient to sustain the jury’s guilty verdicts on
the two counts of aggravated assault, his challenges are moot because those
counts were merged following the second trial, and no sentence was entered on
them. See Beamon v. State, 314 Ga. 798, 800 n.2 (879 SE2d 457) (2022).
Likewise, to the extent that Appellant claims that the evidence presented at
the February 2018 trial was insufficient to sustain the jury’s guilty verdicts on
the four felony murder counts, his challenges are moot because those counts
were vacated by operation of law, and no sentence was entered on them. Id.12
to ultimate facts.” Rich v. State, 307 Ga. 757, 759 (838 SE2d 255)
(2020) (citation and punctuation omitted). Moreover, when we
review the sufficiency of the evidence under Jackson v. Virginia, “we
consider all the evidence admitted at trial, regardless of whether the
trial court erred in admitting some of that evidence.” Davenport v.
State, 309 Ga. 385, 397 (846 SE2d 83) (2020) (emphasis in original).
Appellant argues that none of the State’s witnesses were able
to identify him as the person they saw shooting near the car and
walking into the woods. In addition, he argues that the State did not
introduce evidence that either of the handguns used in the crimes
were recovered from Appellant or from a location connected to him
and, likewise, did not introduce any fingerprint or DNA evidence
directly proving that Appellant shot the victims. However, that does
not mean that the evidence presented was insufficient. “[A]lthough
the State is required to prove its case with competent evidence, there
is no requirement that it prove its case with any particular sort of
evidence.” Rich, 307 Ga. at 759 (citation and punctuation omitted).
Here, when properly viewed in the light most favorable to the
13
verdicts, the evidence presented at Appellant’s trial showed that
Appellant was angry with Hayes because Appellant suspected that
Hayes had stolen a gun from him; that Appellant had previously
pulled a gun on Jackson and Hayes; and that Appellant, through
numerous phone calls, arranged to go to the vacant house with
Jackson and Hayes after confirming with Andrews, his friend and
the son of the owner of the vacant property, that no one would be
present at the house. Moreover, the evidence showed that
Appellant’s stories about the shooting were inconsistent, changing
from a story of a lone shooter who arrived at the house by car to one
in which there were two shooters who arrived on foot. And contrary
to Appellant’s statements that the gunshots were fired from outside
the car, the forensic evidence showed that many of the gunshots
were fired from inside the car, including from the backseat, where
Appellant admitted that he was seated.
In addition, the testimony of four eyewitnesses contradicted
Appellant’s statements. The eyewitnesses described the shooter as
being the only person that they saw run into the woods, which
14
contradicted Appellant’s statement on the day of the crimes that the
shooter ran into the woods first, followed by Appellant getting out of
the backseat of the car and then running into the woods. Also
contrary to Appellant’s statements was Sheppard’s testimony that
she did not see any other car driving down the street or anyone
walking in the street at the time of the shooting. Finally, Neff,
Appellant’s friend, testified that Appellant typically wore the type of
clothing that the shooter was wearing and that he owned a .40-
caliber pistol, which was the caliber of one of the pistols used in the
shooting. Appellant also attempted to sell his “mini Glock 40” pistol
in the days after the crimes. A rational jury could infer from this
evidence that Appellant drove with the victims to the vacant house,
where he shot and killed them, and that he had previously been
convicted of a felony when he did so. 4 Accordingly, the evidence
4The State presented a certified copy of Appellant’s 2006 conviction for
robbery by force, see OCGA § 16-8-40 (a) (1), showing that at the time of the
shootings Appellant was a convicted felon.
15
presented at trial was legally sufficient to support Appellant’s
conviction for malice murder and the two firearm offenses.
3. Allen next argues that the trial court failed to exercise its
discretion as the thirteenth juror and grant him a new trial under
OCGA §§ 5-5-20 and 5-5-21. 5 The record, however, does not support
this claim. Instead, it shows that the trial court properly exercised
its authority in refusing to grant a new trial on the general grounds.
The trial court found that “the jury’s guilty verdict was not ‘contrary
to [the] evidence and the principles of justice and equity.’ OCGA §
5-5-20. Nor was the verdict ‘decidedly and strongly against the
weight of the evidence.’ OCGA § 5-5-21.” The court also stated that
5 OCGA §§ 5-5-20 and 5-5-21, respectively, allow the trial court to grant
a new trial “[i]n any case when the verdict of a jury is found contrary to
evidence and the principles of justice and equity,” or when “the verdict may be
decidedly and strongly against the weight of the evidence even though there
may appear to be some slight evidence in favor of the finding.” “Grounds for a
new trial under these Code sections are commonly known as the ‘general
grounds,’” Donaldson v. State, 302 Ga. 671, 672 n.2 (808 SE2d 720) (2017), and
“[t]he two statutes give the trial court broad discretion to sit as a thirteenth
juror and weigh the evidence on a motion for new trial alleging these general
grounds.” Fortson v. State, 313 Ga. 203, 212 (869 SE2d 432) (2022) (citation
and punctuation omitted).
16
it had “exercised its discretion and independently weighed the
evidence in ruling on the merits of [Appellant’s] OCGA §§ 5-5-20 and
5-5-21 claims,” and that its “conscience approves this verdict.”
“[O]nce we have determined that the trial court properly exercised
its authority in refusing to grant a new trial on the general grounds,
we cannot review the merits of that decision by the trial court.”
Donaldson v. State, 302 Ga. 671, 674 (808 SE2d 720) (2017).
“Instead, this Court’s review of the trial court’s ruling on the general
grounds is limited to sufficiency of the evidence under Jackson v.
Virginia.” Ward v. State, 313 Ga. 265, 268 n.5 (869 SE2d 470) (2022)
(citation and punctuation omitted). And as explained above, the
evidence was sufficient to support Appellant’s convictions under
Jackson v. Virginia. Accordingly, this enumeration of error is
meritless.
4. Appellant contends that, with regard to the November 2017
trial, the trial court erred by denying the motion for mistrial that he
made in response to improper “bad character” testimony by Herlisha
17
McCoy, Jackson’s former fiancée and the mother of two of Jackson’s
children. We disagree.
(a) As background, the prosecutor asked McCoy if she knew
Appellant, and McCoy testified that she “kn[e]w of him.” The
prosecutor then asked her if she knew his name, and McCoy
responded that she did not know his “birth name” but knew him as
“Metro.” The prosecutor asked McCoy to “[t]ell the jury how you
knew him as Metro.” McCoy testified that he had come to her house
once in high school and that Jackson had told her that Appellant
had “killed a lot of people and got away with it.” Appellant’s counsel
asked to approach the bench, and the jury was excused. Based on
McCoy’s testimony, defense counsel moved for a mistrial. The trial
court reserved ruling on the motion for mistrial, but gave a curative
instruction, telling the jury that
just before we broke for the break Ms. McCoy made a
statement that was highly improper and inflammatory.
She is the girlfriend of one of the victims, and she is the
fiancée and mother of two of his children, and she made a
statement about what she says he told her, which she has
no personal knowledge of at all. It is not evidence in this
18
case. I am asking you to completely disregard it. It was
highly improper.
At that point, Appellant did not renew his motion for mistrial.
Instead, McCoy’s testimony continued. Later during her testimony,
when she was explaining that she and Jackson went to see
Appellant at his mother’s home, she testified that Appellant “had
sold [Jackson] a gun.” The jury was again excused, and defense
counsel said that she “want[ed] to renew [her] motion for a mistrial.”
After a lengthy colloquy, the trial court ruled that it was denying
defense counsel’s “new motion” for mistrial, adding that the court
“still reserved the other motion.” Later in the trial, defense counsel
said that, with regard to the first motion for mistrial made during
McCoy’s testimony, “the court had said that you were reserving
ruling, and we just wanted to get your ruling on the record”; “[w]e
just need a ruling one way or the other.” The trial court said, “[w]ell,
I’m going to deny the motion for mistrial.”
(b) On appeal, Appellant contends that the trial court abused
its discretion in failing to grant his motion for mistrial after McCoy
19
testified that Jackson had told her that Appellant had “killed a lot
of people and got away with it.” The State argues that Appellant
failed to preserve this issue for appeal by not renewing that motion
for a mistrial immediately following the trial court’s curative
instruction. However, because we conclude that the trial court did
not abuse its discretion in denying the motion, we do not address
whether Appellant failed to preserve the issue. See Horton v. State,
310 Ga. 310, 317 and n.8 (849 SE2d 382) (2020) (declining to address
whether the defendant failed to preserve a mistrial issue by not
renewing “his motion for mistrial after the trial court’s curative
instruction or object[ing] to the instruction as inadequate,” because
“we conclude that the trial court did not abuse its discretion in
denying [the defendant’s] motion”).
(c) “Whether to grant a motion for mistrial is within the trial
court’s sound discretion, and the trial court’s exercise of that
discretion will not be disturbed on appeal unless a mistrial is
essential to preserve the defendant’s right to a fair trial.” Hill v.
State, 310 Ga. 180, 189 (850 SE2d 110) (2020) (citation and
20
punctuation omitted). “Trial courts are vested with great discretion
to grant or deny mistrials because they are in the best possible
position to determine whether one is warranted.” Simmons v. State,
308 Ga. 327, 329 (840 SE2d 365) (2020) (citation and punctuation
omitted).
A trial court’s denial of a motion for mistrial based on the
improper admission of bad character evidence is reviewed
for abuse of discretion by examining factors and
circumstances, including the nature of the statement, the
other evidence in the case, and the action taken by the
court and counsel concerning the impropriety.
Thrift v. State, 310 Ga. 499, 503 (852 SE2d 560) (2020) (citation
omitted). Furthermore, “it is well established that a trial court can
negate the potentially harmful effect of improperly introduced
evidence by prompt curative instructions rather than by granting a
mistrial” and that “juries are presumed to follow curative
instructions in the absence of proof to the contrary.” Lewis v. State,
314 Ga. 654, 667 (878 SE2d 467) (2022) (citations and punctuation
omitted). And when a witness makes a prejudicial comment about a
defendant, a “new trial will not be granted unless it is clear that the
21
trial court’s curative instruction failed to eliminate the effect of the
prejudicial comment.” Golden v. State, 310 Ga. 538, 546 (852 SE2d
524) (2020) (citation and punctuation omitted).
Here, after McCoy’s testimony, the trial court immediately
gave a curative instruction, informing the jury that the testimony
“was highly improper,” that the witness had “no personal
knowledge” of what she was talking about, that her statement “was
not evidence in the case,” and that the jury must “completely
disregard” the testimony. Moreover, the testimony was cumulative
of other evidence in the case, including testimony by Neff that
Appellant told her that “he was a hitman for hire” and evidence of a
Twitter post by Appellant describing himself as a “one man army hit
squad.” In addition, it is apparent that McCoy’s statement that
Jackson had told her that Appellant had killed people was not
responsive to the prosecutor’s question regarding how she knew
“Metro.” As the prosecutor explained, he “thought [he] was eliciting
testimony that [McCoy] knew Metro through Antony Jackson”—he
added that “I thought she was going to say that that’s how she knew
22
him.” Under these circumstances, we conclude that the trial court
did not abuse its discretion in denying Appellant’s motion for a
mistrial. See Golden, 310 Ga. at 546-547 (holding that the trial
court’s curative instruction was sufficient to protect the defendant
from the prejudicial effect of a witness’ statement that the
defendant, who killed the victim as part of a robbery, had previously
robbed someone else and that the trial court therefore did not abuse
its discretion in denying the defendant’s motion for new trial);
Thrift, 310 Ga. at 503-504 (holding that where the defendant moved
for a mistrial after a State’s witness testified that the defendant,
who was holding a gun in his hand, threatened to kill the witness if
he told anyone that the defendant had killed the victim, the trial
court did not abuse its discretion in denying the motion because the
witness’ answer was unresponsive to the State’s question and
because the “trial court took immediate corrective action . . . ,
instructing the jury to disregard any mention of a threat or a gun”).
5. Appellant contends that, with regard to the February 2018
trial, the trial court erred by allowing Officer Jimmy Butler to
23
testify, over Appellant’s objection, that Douglas Murphy told him at
the crime scene that there was an “individual that fled the scene. He
was wearing a green shirt and, like, he had a white towel wrapped
around his head, and he hit the wood line.” The trial court overruled
Appellant’s objections that the testimony was inadmissible hearsay
and that it improperly bolstered Douglas’ testimony. We conclude
that, even if the trial court abused its discretion in admitting the
testimony, the error was harmless.
Here, before Officer Butler took the stand, Douglas had already
testified. According to Douglas’ testimony, the shooter was “wearing
green with white wrapped around his head standing with his back
to us” and “walked into the wooded area” near the house after the
shooting. Appellant did not conduct any cross-examination of
Douglas. As is evident, Douglas’ statement on the day of the
shooting, as recounted by Officer Butler, was consistent with his
trial testimony.
Under OCGA § 24-8-801 (d) (1) (A),
24
[a]n out-of-court statement shall not be hearsay if the
declarant testifies at the trial or hearing, is subject to
cross-examination concerning the statement, and the
statement is admissible as a . . . prior consistent
statement under Code Section 24-6-613 or is otherwise
admissible under this chapter.
Because Douglas testified at trial and was subject to cross-
examination, the remaining question under § 24-8-801 (d) (1) (A) is
whether his statement was admissible as a prior consistent
statement under OCGA § 24-6-613 (c). See McGarity v. State, 311
Ga. 158, 165 (856 SE2d 241) (2021) (explaining that prior consistent
statements are not admissible if their only purpose is to bolster a
witness’ trial testimony, but that they may be admissible if they
meet the requirements of OCGA § 24-6-613 (c)). However, because
we conclude that any error in admitting Douglas’ statement was
harmless, we need not address whether it was admissible as a prior
consistent statement under § 24-6-613 (c).
Appellant argues that the admission of Douglas’ statement was
harmful because it bolstered his credibility. But we conclude that
the admission of Douglas’ statement does not rise to the level of
25
harmful error. “A nonconstitutional error is harmless if the State
shows that it is highly probable that the error did not contribute to
the verdict, an inquiry that involves consideration of the other
evidence heard by the jury.” Smith v. State, 313 Ga. 584, 587 (872
SE2d 262) (2022) (citation and punctuation omitted). “In
determining whether trial court error was harmless, we review the
record de novo, and we weigh the evidence as we would expect
reasonable jurors to have done so as opposed to viewing it all in the
light most favorable to the jury’s verdict.” Id. at 588 (citation and
punctuation omitted). Moreover, “[w]here improper bolstering has
occurred, this determination must be made without reliance on the
testimony that was improperly bolstered, as the very nature of the
error . . . is that it is repetitive of that to which the witness has
already testified.” McGarity, 311 Ga. at 167 (citation and
punctuation omitted). “Instead, we must consider factors such as
whether the State’s case was based primarily on the bolstered
testimony, and whether the improper bolstering added critical
weight to that testimony.” Id. (citation and punctuation omitted).
26
In the statement that Appellant contends was improperly
admitted, Douglas said that the shooter “was wearing a green shirt
and, like, he had a white towel wrapped around his head, and he hit
the wood line.” This statement was cumulative of other properly-
admitted evidence, as other witnesses gave similar descriptions of
the shooter. Trevor Murphy described the shooter as wearing a
“green jacket type thing,” with something white “wrapped around
his head”; Worthem said that the shooter “appeared to maybe [have]
a white towel or something on his head”; and Sheppard testified that
he had “something white around his head.”
In addition, apart from Douglas’s bolstered testimony, the
evidence that Appellant, and not, as he claimed, another person or
persons, shot the victims was substantial. That evidence included
evidence of Appellant’s prior altercation with Hayes and Jackson;
that Appellant arranged the meeting with the victims after
confirming that no one would be present at the house where the
crimes occurred; that Appellant was admittedly seated in the
backseat from which shots were fired; that Appellant typically wore
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the type of clothing that the shooter was wearing; that he owned one
of the type of pistols used in the shooting and attempted to sell that
pistol in the days after the crimes; that he gave inconsistent
statements to law enforcement officials; and that Appellant’s
version of events was inconsistent with forensic evidence and
eyewitness accounts. In sum, we conclude that it is highly probable
that any error in admitting the prior consistent statement of
Douglas did not contribute to the verdicts finding Appellant guilty
of malice murder. See Puckett v. State, 303 Ga. 719, 722 (814 SE2d
726) (2018) (holding that even if the trial court had erred in allowing
evidence of a witness’ “prior consistent statements, the error would
have been harmless, as the testimony was largely cumulative” of the
properly admitted testimony of other witnesses); Cowart v. State,
294 Ga. 333, 342 (751 SE2d 399) (2013) (holding that error in
admitting a prior statement to bolster a witness’ testimony was
harmless because of the “strong evidence” against the defendant,
apart from the improperly bolstered testimony).
Judgment affirmed. All the Justices concur.
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