Brown v. State ( 2022 )

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: June 30, 2022
S22A0603. BROWN v. STATE.
LAGRUA, Justice.
At a trial in August 2016, a Berrien County jury found
Appellant Kelvin Brown guilty of malice murder and other crimes
related to the shooting death of Cornelius Miller. He now appeals,
contending that: (1) the evidence was insufficient to support his
convictions; (2) the prosecutor failed to lay a proper foundation
before the trial court allowed him to treat witness Tyeesha Gray as
a hostile witness; and (3) the trial court erred in allowing two
witnesses to testify despite lacking personal knowledge about the
shooting. For the reasons that follow, we see no error and therefore
affirm. 1
The shooting occurred on March 15, 2014. On May 11, 2015, a Berrien
1
County grand jury indicted Appellant for malice murder, felony murder,
Viewed in the light most favorable to the jury’s verdicts, the
evidence at trial showed that at approximately 2:00 a.m. on March
15, 2014, Officer Kevin Purvis of the Nashville Police Department
heard people shouting for assistance. Officer Purvis arrived at the
parking lot of Guthrie Motors in Nashville, where he saw Miller
lying face down, still breathing, with blood on his body. Officer
Purvis called for police assistance and an ambulance and began to
manage the crowd that had gathered. Eventually, additional
officers arrived to assist, including Chief of Police Kenneth Eaton.
Chief Eaton testified that when he arrived, he acted as crowd
control in an attempt to secure the crime scene. During this time,
witness Tyeesha Gray “continued to be loud in the crowd.” Chief
aggravated assault, possession of a firearm during the commission of a felony,
and possession of a firearm by a convicted felon. At a trial from September 26
to27, 2016, a jury found Appellant guilty of all five counts. The trial court
sentenced Appellant to serve life in prison for malice murder and five years
consecutive for each of the two firearm counts for a total sentence of life in
prison plus ten years. The remaining counts were merged for sentencing
purposes or vacated by operation of law. On September 29, 2016, Appellant
filed a motion for new trial, which he amended on October 15, 2021. After a
hearing, the trial court denied Appellant’s motion for new trial on December 3,
2021. Appellant then filed a timely notice of appeal, and the case was docketed
to this Court’s April 2022 term and submitted for a decision on the briefs.
2
Eaton put Tyeesha in the back of Officer Purvis’s patrol car because
“she was being loud and really causing more of a scene than anyone
else at that time.” Shortly thereafter, EMS personnel arrived, and
Miller was taken to the Berrien County emergency room, where he
died.
Detective Fred Busbin interviewed Tyeesha at the crime scene,
and she told him that she saw Appellant shoot Miller. Detective
Busbin later obtained a security camera recording from the owner
of Guthrie Motors. The video recording, which was played for the
jury, showed a man running towards Guthrie Motors in a “zigzag
pattern,” from the Blue Club,2 which was down the street. The man
then collapsed between two vehicles in the parking lot of Guthrie
Motors. After reviewing the video recording, Detective Busbin re-
interviewed Tyeesha and interviewed her twin sister, Nyeesha, at
the police department. He testified that Tyeesha gave him the same
Multiple witnesses testified that the Blue Club was known by multiple
2
names, including the Blue Swan and the Blue Flame.
3
account as what she recounted at the crime scene. 3 Detective Busbin
then sought and obtained an arrest warrant for Appellant.
Later, Detective Busbin received a phone call from Sherry
Keefe, the mother of Appellant’s girlfriend, Amanda Ballard. Keefe
told Detective Busbin that Ballard was with Appellant at their home
on the night after the shooting, that Ballard was obtaining a change
of clothes for Appellant, and that Ballard was planning to take
Appellant somewhere to hide. In a second, later phone call, Keefe
told Detective Busbin that Ballard was on her way to Cecil, Georgia
to check on Appellant. Through Keefe, Detective Busbin obtained
cell phone numbers for Ballard and Appellant. Detective Busbin
asked Berrien County 911 dispatchers to “ping” the phone numbers, 4
which told Detective Busbin where the phones were approximately
3 Detective Busbin did not testify as to what Nyeesha told him at the
police department.
4 Busbin testified that “pinging” the phone numbers “doesn’t give really
any information from the phone, it just locates where the phone is.” Jamie
Karnes, a Special Agent with the Georgia Bureau of Investigation, also
testified that 911 dispatchers “have the ability to send out a signal . . . as if it
were calling [a particular] phone but not . . . activate the phone to ring or
vibrate,” which allows dispatchers to get a rough idea of where a particular
phone is located.
4
located. Law enforcement officers called hotels in the area of the
phones’ location and discovered that Ballard had rented a room at a
motel in Cecil on the night of March 14 (the night after the shooting).
Detective Busbin and other law enforcement officers surveilled the
motel and arrested Appellant on Monday, March 16 around 2:30
a.m. There were no weapons found in the hotel room.
The medical examiner testified that Miller died from a gunshot
wound to his chest. A .38-caliber bullet recovered from Miller’s body
was submitted to a firearms expert, who testified that the bullet was
consistent with being fired from a “Smith & Wesson .357 Sig pistol.”
Crime scene investigators recovered 12 shell casings from the scene,
and the firearms expert testified that the casings were consistent
with being fired from the same type of gun. The police did not
recover the firearm used in the murder.
At trial, Roanda Scott testified that he was sitting in his car in
the Blue Club’s parking lot when he saw Appellant walk past while
holding a handgun in his right hand. Scott heard multiple gunshots,
then saw Appellant walk back past Scott’s vehicle again still holding
5
a gun. Scott left, called 911, and was later interviewed by Detective
Busbin. According to Detective Busbin, Scott recounted that he saw
Appellant “come by with a gun, saw him shoot Cornelius Miller, that
[Appellant] ran one way, [and] Miller ran the other way.”
Ballard testified that after the crime, Appellant called her and
stated that “he had killed Prick.” Ballard also received a text
message from a number associated with Appellant that said he had
“killed somebody and he needed [Ballard] to come get him.” Ballard
picked up Appellant and took him to retrieve money from some
friends. According to Ballard, Appellant needed the money in order
to “get a bus and get out of town” because “he killed a person, Prick.”
Ballard then took Appellant to a motel in Cecil, where she rented a
room under her name and stayed with him. While at the motel
room, Appellant admitted to Ballard that he shot Miller because
Miller had called him a “pu**y a** ni**a,” which embarrassed him.
Appellant also told Ballard that he “[got] rid of the gun and that it
would never be found.”
The Gray sisters both testified at trial, but they each asserted
6
that parts of their recollection of the events were based on hearsay.
Tyeesha testified that she was present at the Blue Club on the night
of the shooting and saw Miller get shot. Prompted by leading
questions, she also testified that she told police that she saw
Appellant shoot someone named “Prick.” 5 Nyeesha testified that she
saw Miller at the Blue Club on the night of the shooting and as she
was leaving the club, she heard multiple gunshots. Nyeesha further
testified that, after the shooting, she went to the Nashville Police
Department and told officers that she saw Appellant shoot Miller.
1. Appellant contends that the evidence was insufficient, given
that the Gray sisters’ testimony was ostensibly based on hearsay
and Scott’s testimony did not reflect that the gun Scott saw
Appellant carrying was in fact the murder weapon. Accordingly,
Appellant argues, the State’s entire case was based on
circumstantial evidence, which failed to rule out the possibility that
someone else was the shooter. See OCGA § 24-14-6. We disagree.
5 Throughout her testimony, Tyeesha referred to the victim
interchangeably as “Prick” or Cornelius Miller.
7
When evaluating the sufficiency of the evidence as a matter of
federal due process under the Fourteenth Amendment to the United
States Constitution, the proper standard of review is whether a
rational trier of fact could have found the defendant guilty beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (III)
(B) (99 SCt 2781, 61 LE2d 560) (1979). Further, under Georgia
statutory law, “[t]o warrant a conviction on circumstantial evidence,
the proved facts shall not only be consistent with the hypothesis of
guilt, but shall exclude every other reasonable hypothesis save that
of the guilt of the accused.” OCGA § 24-14-6. However, if there is
any direct evidence presented by the State, the circumstantial
evidence statute does not apply in a sufficiency analysis. See
Jackson v. State, 310 Ga. 224, 228 (2) (b) (850 SE2d 131) (2020).
Here, the State did not rely solely on circumstantial evidence.
Appellant fails to account for the direct evidence in the form of
Ballard’s testimony saying that Appellant confessed on multiple
occasions to shooting Miller in response to being embarrassed. See
Eggleston v. State, 309 Ga. 888, 891 (848 SE2d 853) (2020)
8
(appellant’s confession to former cellmate was direct evidence of
guilt). Additionally, as discussed in Division 3 below, the testimony
from the Gray sisters that they told police officers that they saw
Appellant shoot Miller was not based on hearsay but also direct
evidence of Appellant’s guilt.
This direct evidence must be considered along with the
circumstantial evidence, including Scott’s testimony about seeing
Appellant with a gun shortly before and after hearing gunshots at
the Blue Club; Detective Busbin’s testimony about how Keefe heard
about Ballard’s plans to get a change of clothes for Appellant and
take him somewhere to hide; and Ballard’s testimony that Appellant
confessed to disposing of his gun after the shooting so that it “would
never be found” and that he sought to obtain money from friends in
order to “get a bus and get out of town.” Taken together in the light
most favorable to the verdicts, we conclude that the evidence was
more than sufficient to support Appellant’s convictions. See
Jackson¸44 U.S. at 319 (III). This enumeration fails.
2. Appellant next contends that the trial court abused its
9
discretion in allowing the State to treat Tyeesha as a hostile witness.
We disagree.
Under OCGA § 24-6-611 (c), “[l]eading questions shall not be
used on the direct examination of a witness except as may be
necessary to develop the witness’s testimony.” However, “[w]hen a
party calls a hostile witness, an adverse party, or a witness
identified with an adverse party, interrogation may be by leading
questions.” Id. We review the trial court’s decision to allow leading
questions for an abuse of discretion. See Merritt v. State, 310 Ga.
433, 439 (3) (851 SE2d 555) (2020).
During the State’s direct examination of Tyeesha, the
prosecutor asked several questions about what she saw on the night
of the shooting. Tyeesha testified that she was present at the Blue
Club, saw Miller get shot, spoke to police officers about the shooting,
and told police officers that she knew who shot Miller. However,
Tyeesha also responded “I don’t know” to several questions, and the
following colloquy occurred regarding the specific identity of the
shooter:
10
PROSECUTOR: Did you see who shot [Miller]?
TYEESHA: I seen him get shot.
PROSECUTOR: Who was the individual that shot him?
TYEESHA: I don’t know.
PROSECUTOR: Do you remember telling the officers that
you knew who shot him?
TYEESHA: Yep.
PROSECUTOR: And who did you tell them shot
Cornelius Miller that night?
TYEESHA: What I heard was hearsay.
PROSECUTOR: Do you remember telling the officer that
night —
TYEESHA: Yes.
PROSECUTOR: — that you physically saw an individual
shoot Cornelius Miller?
TYEESHA: What I heard was hearsay.
PROSECUTOR: Do you remember telling the officer —
TYEESHA: Yes.
PROSECUTOR: — that you physically with your own
eyes saw someone shoot Cornelius Miller?
TYEESHA: Yes.
The prosecutor then moved to treat Tyeesha as a hostile
witness. Appellant’s counsel objected, arguing that Tyeesha was
testifying as to what she recalled. The prosecutor responded that
Tyeesha was “clearly nonresponsive. She’s only answering part of
the question. She’s answering that she knows and then she says she
doesn’t know, so I’d ask at this time to be able to lead her.” The trial
court granted the motion. Prompted by leading questions, Tyeesha
11
then admitted that when she spoke with the police, she admitted
that she saw Appellant shoot Miller; that after he was hit, Miller
screamed “I’ve been hit”; and that after Appellant shot Miller,
Appellant fired several shots in the air. She also told the police that
her sister Nyeesha was behind her during the shooting.
Citing Hayes v. State, 268 Ga. 809, 812-813 (6) (493 SE2d 169)
(1997), Appellant argues that “the only time a witness may be asked
leading questions is when that witness is nervous, reluctant, or
hostile,” and argues that Tyeesha was none of these things when the
prosecutor moved to treat her as a hostile witness.6 Appellant
further argues that the prosecutor’s proffered reason for treating
Tyeesha as a hostile witness — her unresponsiveness — is not a
permitted situation for such treatment. However, the trial court
ruled that Tyeesha was a hostile witness when it allowed the
6 We note that Appellant’s reliance on Hayes is misplaced, as that case
was decided under Georgia’s old Evidence Code. The current version of OCGA
§ 24-6-611(c) is modeled on Federal Rule of Evidence 611 (c). Accordingly, we
look to federal case law interpreting Federal Rule of Evidence 611 (c) for
guidance in interpreting this rule. See State v. Almanza, 304 Ga. 553, 556-557
(2) (820 SE2d 1) (2018).
12
prosecutor to use leading questions.
Based on our review of the record, the trial court’s ruling was
not an abuse of discretion. The record indicates that Tyeesha was
uncooperative in answering the State’s questions regarding her
account of the shooting that she had previously provided to Busbin,
answering “I don’t know” to several questions and “What I heard
was hearsay” to two questions about the shooter’s identity. Further,
her assertions that her previous account was based on hearsay
amounted to a recanting of her previous statement to the police that
she saw Appellant shoot Miller and an unwillingness to be
forthcoming in her testimony. Appellant has not cited any authority
indicating that leading questions are not allowed when a witness is
unresponsive in this way. And federal cases applying Federal Rule
of Evidence 611 (c) indicate that leading questions are appropriate
in situations similar to this one. See United States v. Postell, 891
F2d 287 (4th Cir. 1989) (leading questions were permitted to develop
witness’s testimony where the witness was disinclined to “answer
fully the prosecution’s questions”); United States v. Brown, 603 F2d
13
1022, 1025-1026 (3) (1st Cir. 1979) (leading questions permitted
where, among other things, the witness’s testimony was “replete
with lapses of memory”). Accordingly, we conclude that the trial
court did not abuse its discretion in allowing the State to treat
Tyeesha as a hostile witness. This enumeration of error fails.
3. During their testimony, both Gray sisters claimed that their
knowledge of the shooting was based on hearsay. It follows,
Appellant argues, that neither sister had personal knowledge of the
shooting and therefore should not have been allowed to testify. This
enumeration of error also fails.
As a preliminary matter, Appellant did not object to either
sister’s testimony on this ground so as to preserve ordinary appellate
review of this issue. Accordingly, we review Appellant’s claim
regarding the Gray sisters’ alleged lack of personal knowledge only
for plain error. See Rawls v. State, 310 Ga. 209, 213 (3) (850 SE2d
90) (2020) (applying plain-error standard where appellant objected
to testimony at trial only on grounds other than those raised on
appeal); OCGA § 24-1-103 (d).
14
To establish plain error, Appellant must show a clear or
obvious error that he did not affirmatively waive and that
affected his substantial rights, meaning that it probably
affected the outcome of the trial. If those three
requirements are met, we may remedy the error if it
seriously affects the fairness, integrity or public
reputation of judicial proceedings.
Rawls, 310 Ga. at 213 (3).
Regarding a witness’s personal knowledge of a matter, OCGA
§ 24-6-602 is controlling: “A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of such matter. Evidence to prove
personal knowledge may, but need not, consist of the witness’s own
testimony.”
Both Gray sisters testified that they were present at the Blue
Club on the night of the shooting. Each sister also gave statements
to the police recounting the events of the shooting shortly thereafter.
Tyeesha spoke to Detective Busbin at the scene immediately after
the shooting, and both sisters spoke to Detective Busbin at the police
station later in the morning; there, they both told the police that
they saw Appellant shoot Miller. Additionally, during trial, both
15
sisters ultimately testified that they told the police that they saw
Appellant shoot Miller. Thus, there was sufficient evidence to
establish that the Gray sisters each had personal knowledge of the
shooting as well as the identity of the shooter. Accordingly, the trial
court’s decision to allow the Gray sisters to testify was not error, let
alone plain error. This enumeration fails.
Judgment affirmed. All the Justices concur.
16