Brown v. State , 295 Ga. 804 ( 2014 )

In the Supreme Court of Georgia
Decided: October 6, 2014
S14A0800. RICKEY BROWN v. THE STATE.
S14A0801. MECCO MCKINNEY v. THE STATE.
NAHMIAS, Justice.
Rickey Brown and Mecco McKinney appeal their convictions for murder
and a firearm offense related to a gun fight between them and co-indictee Teon
Richardson that resulted in the death of an innocent bystander, four-year-old
Sedriana Rosser. Finding no reversible error as to any of the many claims raised
by one or both of the Appellants, we affirm in both cases.1
1
The victim was killed on March 17, 2004. On August 5, 2005, a Fulton County grand jury
indicted Brown, McKinney, and Richardson for malice murder, two counts of felony murder (based
on possession of a firearm by a convicted felon and aggravated assault), aggravated assault with a
deadly weapon, possession of a firearm by a convicted felon, and possession of a firearm during the
commission of a felony. Brown and McKinney were tried together from May 2 to 15, 2006. The
jury found them both guilty of all the charges except malice murder, for which they were found
guilty of the lesser included offense of voluntary manslaughter. On June 30, 2006, the trial court
entered an order sentencing both Brown and McKinney to serve life in prison for felony murder
based on possession of a firearm by a convicted felon and five consecutive years for possession of
a firearm during the commission of a felony. The other guilty verdicts were vacated by operation
of law or merged into the felony murder conviction. Richardson was tried from June 26 to July 6,
2006, and was acquitted on all charges. Brown filed a timely motion for new trial, which he then
amended three times after being appointed new counsel. McKinney, who is still represented by his
trial counsel, filed a timely motion for new trial and then amended it twice. After holding a hearing
on both motions, the trial court denied them on July 11, 2013. Brown and McKinney filed timely
notices of appeal, and the two related cases were docketed in this Court for the April 2014 Term and
submitted for decision on the briefs.
1. Viewed in the light most favorable to their verdicts, the evidence
presented at trial showed the following. About three weeks before the shooting
at issue here, Brown, McKinney, and Richardson got into a physical fight
because Brown and McKinney believed Richardson had stolen something from
them. Richardson also left a voice-mail on another person’s phone threatening
to kill Brown and McKinney with his TEC-9 gun. On March 17, 2004,
Richardson was walking around the Jonesboro South apartment complex trying
to sell a TEC-9, which he had attached to a string around his neck. When
Brown and McKinney, who were giving two women a ride to the apartment
complex, arrived in the parking lot, the three men spotted each other, drew their
guns, and opened fire. Brown and McKinney got out of the car, and Richardson
ran towards an occupied area of the complex and took cover in Cheryl Jackson’s
apartment. One of the shots struck and killed the victim child, who was outside
playing. Brown and McKinney then drove away; when Richardson left
Jackson’s apartment, he was apprehended by Jonesboro South residents and held
until the police arrived.
At Appellants’ trial, eight eyewitnesses testified about the exchange
between Brown, McKinney, and Richardson. The accounts varied considerably,
2
both from witness to witness and within some of the witnesses’ testimony,
regarding which of the three men had guns, who drew his gun first, and who
actually fired his gun. Some of the testimony indicated that Brown and
McKinney both had guns and both fired, and three of the witnesses testified that
Brown and McKinney drew their guns first. The other five witnesses said that
Richardson pointed his gun first, but only two of them believed that Richardson
was actually able to shoot his gun. The police also found unfired bullets from
a TEC-9 at the crime scene, which indicated that although he tried to shoot,
Richardson’s gun would not fire. Brown, McKinney, and Richardson did not
testify. The jury was charged on self-defense justification, but rejected that
defense and found Brown and McKinney guilty.
Neither Appellant challenges the legal sufficiency of the evidence.
Nevertheless, in accordance with this Court’s practice in murder cases, we have
reviewed the record and conclude that the evidence presented at trial and
summarized above was sufficient to authorize a rational jury to find Brown and
McKinney guilty beyond a reasonable doubt of the crimes for which they were
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
3
was for the jury to determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.’” (citation omitted)).
2. Before trial, McKinney filed a special demurrer to the indictment,
arguing that it contained prejudicial surplusage in Counts 2, 6, and 7 and that its
reference to his alleged alias was impermissible bad character evidence. The
trial court denied the special demurrer, and we see no error in that ruling.
Count 2 of the indictment, which charged felony murder based on
possession of a firearm by a convicted felon, alleged that McKinney, Brown,
and Richardson caused the death of the victim “by engaging in a gun battle with
each other which caused Sedriana Rosser to be shot and killed in the crossfire.”
Count 6, which charged felony murder based on aggravated assault, alleged that
the victim was killed “in the crossfire.” And Count 7, which charged aggravated
assault, included another allegation that there was a “gun battle.” McKinney
contends that these allegations were prejudicial surplusage. However, “mere
surplusage does not vitiate an otherwise valid indictment.” Malloy v. State, 293
Ga. 350, 360 (744 SE2d 778) (2013). The language to which McKinney objects
was permissible because the references to the “gun battle” and “crossfire”
4
“accurately described the offenses charged and made the charges more easily
understood” by the defendants and the jury. Id.The caption of the indictment referred to McKinney as “Mecco McKinney
aka Jesse Chester,” but during the trial, no witness identified McKinney by that
alias, and there was no other evidence presented that he had used that name.
Nevertheless, this Court explained long ago that while
the appearance of an alias in an indictment might reflect
unfavorably on the accused, it is the settled law of this State that the
grand jury may so indict the accused, either when he is known by
different names or when the grand jury is uncertain as to which of
a number of names is his true name. The purpose of giving the
name is to identify the accused. If this law is abused by an
unjustifiable resort thereto by the grand jury, the accused has
opportunity upon the trial to prove that he has never had an
assumed name, and that he has never been known by the names
given in the indictment aside from that which he admits is his true
name.
Andrews v. State, 196 Ga. 84, 110-111 (26 SE2d 263) (1943), overruled in part
on other grounds, Frady v. State, 212 Ga. 84 (90 SE2d 664) (1955). See also
Allen v. State, 231 Ga. 17, 18 (200 SE2d 106) (1973).
A claim that the indictment has misidentified the defendant should be
challenged by a special plea of misnomer, which will be sustained only when the
defendant has never been known by any of the names listed in the indictment.
5
See OCGA § 17-7-112; Andrews, 196 Ga. at 110-111. Moreover, there is no
reason to believe that the mere mention of an innocuous-sounding alias in the
caption of the indictment caused McKinney any harm. Cf. Hawes v. State, 266
Ga. 731, 732-733 (470 SE2d 664) (1996) (holding that the inclusion of the alias
“Stomper” in the indictment was proper where the defendant was known by that
nickname, even though the victim “literally was beaten and stomped to death”).
3. McKinney also contends that the trial court erred in denying his
pretrial motion to sever the count of the indictment charging possession of a
firearm by a convicted felon (Count 10) and the related felony murder count
(Count 2) for trial separately from the other charges, on the ground that evidence
of his prior felony conviction for possession of cocaine was otherwise
inadmissible as bad character evidence under former OCGA § 24-2-2.2 This
Court has held that, in cases where a felon-in-possession firearm charge “is
unrelated to another count for which the defendant is to be tried,” the
proceedings should be bifurcated so that the jury will hear and decide the more
serious charge(s) before learning about the firearm charge and the defendant’s
2
Appellants’ trial was held under Georgia’s old Evidence Code. Our new Evidence Code,
effective for trials held after January 1, 2013, addresses character evidence in OCGA § 24-4-404 and
the related provisions referenced therein.
6
prior conviction. Head v. State, 253 Ga. 429, 431-432 (322 SE2d 228) (1984),
overruled on other grounds by Ross v. State, 279 Ga. 365 (614 SE2d 31) (2005).
However, “a motion to bifurcate should be denied where the count charging
possession of a firearm by a convicted felon might serve as the underlying
felony supporting a felony murder conviction.” Poole v. State, 291 Ga. 848, 850
(734 SE2d 1) (2012). See also Head, 253 Ga. at 432; Jones v. State, 265 Ga.
138, 139-140 (454 SE2d 482) (1995) (holding that bifurcation is not appropriate
whenever there is a malice murder charge, because felony murder based on the
felon-in-possession firearm charge could be a lesser included offense). Because
in this case one of the counts of felony murder was based on the felon-in-
possession firearm charge (and the indictment also charged malice murder), the
trial court did not err when it denied McKinney’s motion to bifurcate the trial.
4. Brown contends that the trial court erred during jury selection when
it failed to grant his request to strike Juror 69 for cause. Juror 69 was a
pediatrician who said during voir dire that “someone needed to pay” for what
happened to the child victim, that she did not like guns, that it would be difficult
for her to sit and listen to the evidence, and that she did not want to see the
mother of the child cry. However, Juror 69 also testified that she would be
7
“willing to hear the facts” and confirmed that she had not presumed that Brown
was guilty. She also said,
I think I can be impartial, I mean, I deal with a lot of emotions in
my position as a physician, and I can separate myself from these
emotions and come to a logical decision. So I think I would be able
to hear the evidence and come to a logical decision.
She added she “would do [her] best to set aside [her] emotions” and reiterated,
“I think I can separate my emotions and look at the facts in the case.” When the
court asked if she could reach an impartial verdict, she answered: “I’m a human
being with a lot of history, and I will do the best I can to be impartial. That’s all
I can say. I mean that’s all I can really do.”
“Whether to strike a juror for cause lies within the sound discretion of the
trial judge, and the trial court’s exercise of that discretion will not be set aside
absent a manifest abuse of discretion. . . . The law presumes that potential jurors
are impartial, and the burden of proving partiality is on the party seeking to have
the juror disqualified.” Poole v. State, 291 Ga. 848, 851 (2012) (citations
omitted). Moreover,
“[f]or a juror to be excused for cause, it must be shown that he or
she holds an opinion of the guilt or innocence of the defendant that
is so fixed and definite that the juror will be unable to set the
opinion aside and decide the case based upon the evidence or the
8
court’s charge upon the evidence. A prospective juror’s doubt as to
his or her own impartiality does not demand as a matter of law that
he or she be excused. Nor is excusal required when a potential juror
expresses reservation about his or her ability to put aside personal
experiences. . . . A conclusion on an issue of bias is based on
findings of demeanor and credibility which are peculiarly in the trial
court’s province, and those findings are to be given deference.”
Brockman v. State, 292 Ga. 707, 721 (739 SE2d 332) (2013) (citation omitted).
Viewed under these principles, although Juror 69 indicated that she disliked
guns and was upset that a child had been killed, the trial court did not abuse its
discretion in concluding from the sum of her responses that she would be able
to listen to the evidence and reach an impartial decision.
5. Before trial, Brown and McKinney gave notice, as required by
Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991), and Uniform Superior
Court Rule 31.6, of their intention to introduce evidence of Richardson’s prior
acts of violence in support of their justification defense. See Chandler, 261 Ga.
at 407-408 (“[W]e will permit a defendant claiming justification to introduce
evidence of specific acts of violence by the victim against third persons . . . .”).
These acts included a 1994 incident for which Richardson pled guilty in Fulton
County to two counts of simple battery for choking his mother; three separate
incidents in Baltimore in 1998, where Richardson was allegedly involved in an
9
assault and battery, a carjacking and assault, and an assault; a 1999 incident for
which Richardson was arrested in Taylor County, Georgia with a stolen CD
player and a 9mm gun in his possession; and a 2004 incident for which
Richardson was found guilty of choking someone. The trial court admitted the
proffered evidence of only the 1994 and 2004 incidents.
Both Appellants challenge the trial court’s refusal to let them call
Richardson as a witness to testify about these incidents, based on his invocation
of his privilege against self-incrimination. McKinney alone also now claims
that the trial court should have granted Richardson immunity so that he would
testify. And McKinney alone challenges the trial court’s exclusion of the
proffered evidence of the 1998 and 1999 incidents. We conclude that none of
these enumerations of error have merit.
(a) When Appellants sought to call Richardson as a witness to
testify about his previous acts of violence against other people, his counsel
announced that Richardson would invoke his Fifth Amendment privilege against
self-incrimination as to any questions about those prior acts, noting that
Richardson’s own trial was scheduled to begin in about a month. When a
10
witness expresses his intention to invoke his privilege against self-incrimination,
the trial court must consider the questions that the witness would be asked and
decide whether there is a real and appreciable danger that the
answer[s] could incriminate the witness. If so, then the decision to
answer must be left to the witness. If the trial court determines that
the answers could not incriminate the witness, the witness is
required to answer or face the court’s sanctions.
Cody v. State, 278 Ga. 779, 780 (609 SE2d 320) (2004) (emphasis in original).
After hearing arguments from both sides, the trial court here reasonably
concluded that any questions as to Richardson’s past violent acts could
incriminate him and affect his pending trial. Accordingly, the court precluded
Appellants from calling Richardson as a witness.
Citing Spivey v. State, 200 Ga. App. 284 (407 SE2d 425) (1991),
Appellants argue that the trial court erred in refusing to let them call Richardson
to the witness stand outside of the presence of the jury and then considering on
a question-by-question basis whether Richardson had a legitimate reason to
invoke his privilege against self-incrimination.3 However, Appellants did not
identify at trial, and still have not identified on appeal, any specific questions
3
It is clear that the trial court acted within its discretion in refusing to make Richardson take
the witness stand and invoke his right against self-incrimination in front of the jury. See Davis v.
State, 255 Ga. 598, 604 (340 SE2d 869) (1986).
11
about the prior violent acts as to which Richardson could not validly assert his
privilege. This is not a case like Spivey, where the limited questioning proposed
by the defendant appeared calculated “to elicit only potentially relevant
testimony exculpatory of [the defendant], rather than incriminatory of [the
witness].” See id. at 285.
(b) McKinney also claims that the trial court should have granted
Richardson use immunity under former OCGA § 24-9-28 to compel his
testimony about the prior incidents.4 However, McKinney did not ask the court
to do this during the trial and thus did not preserve this claim for review on
appeal. See Rucker v. State, 291 Ga. 134, 138 (728 SE2d 205) (2012).
4
Former OCGA § 24-9-28 (a) said, with emphasis added:
Whenever in the judgment of the Attorney General or any district attorney the
testimony of any person or the production of evidence of any kind by any person in
any criminal proceeding before a court or grand jury is necessary to the public
interest, the Attorney General or the district attorney may request the superior court
in writing to order that person to testify or produce the evidence. Upon order of the
court that person shall not be excused on the basis of his privilege against
self-incrimination from testifying or producing any evidence required; but no
testimony or other evidence required under the order or any information directly or
indirectly derived from such testimony or evidence may be used against the person
in any proceedings or prosecution for a crime or offense concerning which he
testified or produced evidence under court order. . . .
This provision is found in the new Evidence Code at OCGA § 24-5-507 (a).
12
In any event, “[t]his Court has never directly held that a defendant, as
opposed to the State, may properly request a trial court to extend use immunity
to a defense witness.” Ward v. State, 292 Ga. 637, 639 (740 SE2d 112) (2013).
We explained long ago that “[o]ur statutes provide no such discretion to the
court and, further, make no provision for a grant of immunity to defense
witnesses.” Dampier v. State, 249 Ga. 299, 300 (290 SE2d 431) (1982). In
Dampier, we noted that the United States Court of Appeals for the Third Circuit
had adopted a test for “judicially imposed use immunity,” but concluded that
Dampier’s claim failed even under that test because the State’s interest in
denying immunity to the witness outweighed the defendant’s need for the
testimony. See id. at 301-302. The Third Circuit has recently changed course
and brought its law in line with every other federal circuit court in holding that
courts do not have the authority to grant immunity to a witness at the request of
a defendant, because “Congress has given the Executive Branch the sole
authority to immunize witnesses.” United States v. Quinn, 728 F3d 243, 252
(3d Cir. 2013). We now squarely hold that Georgia law does not authorize a
trial court to grant use immunity to a witness at the request of a defendant. See
13
Dennard v. State, 313 Ga. App. 419, 421 (721 SE2d 610) (2011) (adopting the
same holding).
McKinney also now suggests that the trial court could have excluded
Richardson’s testimony at Appellants’ trial from being used later in
Richardson’s trial. However, McKinney does not cite any precedent authorizing
one defendant to seek an order suppressing evidence in another defendant’s trial,
and again he did not explicitly seek such an order from the trial court. See
Quinn, 728 F3d at 254-255 (explaining that the United States Supreme Court
has limited the trial court’s ability to prevent a defendant’s testimony in a
pretrial hearing from being used against him at his later trial to cases where “the
defendant witness faced a conflict between two [of his own] constitutional
rights”).
(c) To prove the three separate incidents of violence allegedly
committed by Richardson in Baltimore in 1998, Appellants proffered only the
police reports of each incident. Appellants acknowledged that the reports were
hearsay but maintained that the reports should be admitted under the necessity
exception to the hearsay rule because, given Richardson’s refusal to testify at
trial, the reports were the only evidence of his alleged violent acts in 1998. See
14
former OCGA § 24-3-1 (b).5 The trial court ruled that the police reports were
inadmissible, and McKinney enumerates that ruling as error.
“In order to admit a statement under the necessity exception to the hearsay
rule, the declarant must be unavailable, there must be particular guarantees of
trustworthiness, and the statement must be shown to be relevant to a material
fact and more probative of that material fact than other evidence that might be
procured and offered.” White v. State, 276 Ga. 583, 586-587 (2003). Even
assuming that the authors of the three 1998 police reports and the victims and
witnesses whose statements were recounted in two of the reports were all
outside Georgia and thus deemed unavailable, see Bragg v. State, 279 Ga. 156,
157 (611 SE2d 17) (2005), and that the reports were relevant as the only
evidence of these alleged prior acts of violence by Richardson, Appellants failed
to establish the necessary guarantees of trustworthiness.
The report of the first 1998 incident identified the perpetrator as a black
male named “Tion Chauncy Richardson” and included the perpetrator’s date of
birth and address. The report of the second incident identified the perpetrator
only as “Teon,” describing him as a black male with three gold teeth. The report
5
The necessity exception is codified in the new Evidence Code at OCGA § 24-8-807.
15
of the third incident identified the perpetrator as “Teon C. Richardson” and
included the same address and date of birth as the first report. Other than the
relatively common name, Appellants offered no evidence directly linking the
Teon Richardson involved in this case with the alleged perpetrator (or
perpetrators) described in the police reports from Baltimore – not even evidence
of Richardson’s birthdate or that he was living in Baltimore in 1998. We note
that the police report from the 1999 Taylor County incident includes a birthdate
for Richardson that matches the date on the two 1998 police reports – but the
police report from the 1994 incident in Fulton County, which was admitted
along with the testimony of the investigating officer, lists a different birthdate
for Richardson. Nor did Appellants offer any evidence of charges or
convictions relating to the Baltimore incidents. The trial court found that there
was no reliable evidence that Richardson was the person identified in the 1998
police reports, and we cannot say that the court’s finding was clearly erroneous.
In addition, the only information about violent acts contained in the police
reports of the first two incidents was double hearsay – the statements of victims
and witnesses recounted in those reports. At trial, McKinney asserted that this
double hearsay issue could be eliminated through redaction of those statements
16
from the police reports, but if the victim and witness statements were redacted,
the reports would include no description of the perpetrator’s violent acts and
thus would be irrelevant. And on appeal, McKinney does not suggest a theory
by which the victim and witness statements would have been admissible, and we
need not search for one sua sponte.
As for the police report of the third 1998 incident, which contains an
officer’s account of the perpetrator’s violence toward him, this Court has
expressed doubts about the reliability of such narrative portions of police reports
when offered in criminal trials. See, e.g., Brown v. State, 274 Ga. 31, 33-36
(549 SE2d 107) (2001) (explaining that the narrative portion of a police report
“does not have the reliability inherent in other documents that courts have
traditionally considered to be business records,” and concluding that “the
narratives contained in police reports generated in connection with police
investigations are not the appropriate subject of an exception to the hearsay
rule.”). Moreover, the trial court admitted evidence of the 1994 and 2004
incidents of violence committed by Richardson, making the evidence of the
1998 incidents somewhat cumulative. Under these circumstances, the trial court
did not abuse its discretion in excluding the three 1998 police reports.
17
(d) The trial court also excluded the proffered evidence that in
1999 in Taylor County, Richardson broke into a car and was arrested as he fled
with a stolen CD player and a 9mm gun in his possession, on the ground that the
incident did not involve an act of violence. McKinney challenges this ruling,
but we again see no abuse of discretion.
The burden is on the defendant to show that the alleged victim’s prior acts
involved violence toward a third party. See Bennett v. State, 265 Ga. 38, 41
(453 SE2d 458) (1995). This Court has held that merely possessing a firearm
– even an illegal sawed-off shotgun – is not a “specific act of violence” against
a third party, without proof of a specific victim. Smith v. State, 270 Ga. 240,
243-244 (510 SE2d 1) (1998), overruled on other grounds by O’Kelley v. State,
284 Ga. 758 (670 SE2d 388) (2008). And McKinney’s assertion that the
evidence related to the 1999 incident proved that Richardson pointed the gun at
a police officer is not supported by that evidence, in particular the transcript
from the hearing at which Richardson entered his guilty pleas for offenses
related to that incident. The transcript shows that, in response to the
prosecutor’s allegation that he pulled out a pistol and started to point it at the
officer, Richardson denied pulling a gun on the officer and explained, “I’m
18
pretty sure if I pulled out a pistol and pointed at him he would have shot me”;
the judge taking the plea agreed with Richardson. Accordingly, the trial court
properly excluded evidence of the 1999 incident.
6. Toney Carter, a resident of the apartment complex where the
shooting occurred, was called as a witness by the State. Based on statements he
made during his direct examination, he was questioned by both parties outside
the presence of the jury, and he said that earlier on the day of the shooting,
Richardson had openly bragged about pulling a gun on Brown and Brown’s
child that morning. During this convoluted and conflicting testimony, Carter
claimed both that he heard about Richardson’s boast only from “reliable people”
and that he personally heard the boast. The trial court ruled that Carter’s
proffered testimony about Richardson’s alleged statement was inadmissible as
hearsay.
Both Appellants now contend that Carter’s testimony should have been
admitted as non-hearsay to show Richardson’s state of mind on the day of the
shooting. The validity of this theory depends on which parts of Carter’s
inconsistent testimony are considered. To the extent that Carter said that he
heard about Richardson’s boast only from “reliable people,” the statements
19
made to Carter by those unidentified people are themselves hearsay and were
properly excluded. The parts of Carter’s testimony that indicate that he heard
Richardson’s boast directly, however, might be admissible to prove
Richardson’s state of mind, because even if Richardson was lying about making
the threat, the fact that he said to Carter that he had threatened Brown indicated
his ill-will toward Brown. See Sturkey v. State, 271 Ga. 572, 573 (522 SE2d
463) (1999).
At trial, however, Appellants argued only that Carter’s testimony about
Richardson’s statement was admissible under the exception to the hearsay rule
for a statement made by a party, an argument they have abandoned on appeal.
Appellants did not argue at trial that any part of Carter’s testimony was non-
hearsay, and thus they did not preserve that claim for review on appeal. See
Rucker, 291 Ga. at 138. In any event, any error the trial court may have made
in excluding part of Carter’s proffered testimony that Richardson posed a threat
to Brown was harmless, given the testimony of five eyewitnesses that
Richardson pointed his TEC-9 gun at Brown and McKinney before they drew
their guns.
20
7. McKinney alone contends that the trial court erred in excluding
Cheryl Jackson’s hearsay statement that Richardson entered her apartment after
the shootout with McKinney and Brown and then dislodged the clip of the gun
he was carrying, wiped the clip off with a shirt, reloaded the clip, and cocked the
weapon. Jackson recounted these events in a signed statement to the police, but
she died before Appellants’ trial. The trial court denied McKinney’s pretrial
motion to admit Jackson’s statement under the necessity exception to the
hearsay rule on the ground that McKinney had not shown that her statement was
more probative of a material fact than other available evidence, see White, 276
Ga. at 586-587, because other witnesses were available to testify that
Richardson had a gun and that he entered Jackson’s apartment during the
shootout.
McKinney asserts, however, that Jackson’s statement was the only
evidence that could establish that Richadson’s gun was actually capable of
firing. But two eyewitnesses testified that they believed Richardson actually
fired shots, and Jackson’s statement does not prove that Richardson’s gun was
capable of firing, since she never said that she saw the gun fire. Indeed, the
events she recounted would support the inference that Richardson’s gun had
21
jammed and needed to be cleared before it would be capable of firing, an
inference supported by direct testimony from other eyewitnesses that the gun did
not fire. Under these circumstances, the trial court did not abuse its discretion
in denying McKinney’s motion to admit Jackson’s hearsay statement under the
necessity exception.
8. At trial, the State introduced evidence, in the form of testimony from
Brown’s ex-girlfriend and an officer who investigated the incident, showing that
in May 1999, Brown was standing on his ex-girlfriend’s porch with her, her
daughter, and other children when he was approached by her new boyfriend and
another man. Brown responded by pulling out a handgun, pointing it at the
people on the porch, and pulling the trigger, although the gun did not fire. This
evidence was admitted to show Brown’s course of conduct and bent of mind,
and the court gave a limiting instruction to that effect. Brown argues that the
admission of this evidence was error. We disagree.
Before a trial court can admit similar transaction evidence, the State must
show that:
“(1) it seeks to introduce the evidence not to raise an improper
inference as to the accused’s character, but for some appropriate
purpose which has been deemed to be an exception to the general
22
rule of inadmissibility; (2) there is sufficient evidence to establish
that the accused committed the independent offense or act; and (3)
there is a sufficient connection or similarity between the
independent offense or act and the crime charged so that proof of
the former tends to prove the latter.”
Hanes v. State, 294 Ga. 521, 522 (755 SE2d 151) (2014) (citation omitted). At
the time of Appellants’ trial, it was appropriate for the State to introduce
evidence of a defendant’s prior bad acts for the purpose of showing his “course
of conduct” and “bent of mind.” See, e.g., Cockrell v. State, 281 Ga. 536,
539-540 (640 SE2d 262) (2007).6 And the evidence the State presented was
clearly sufficient to establish that Brown committed the act in May 1999.
Brown maintains, however, that the 1999 incident was not sufficiently
similar to the shooting at issue in this case. The proper focus is on the
similarities, not the differences, between the crimes charged and the prior acts.
See Brite v. State, 278 Ga. 893, 894-895 (608 SE2d 204) (2005). In both
incidents, Brown pulled out a handgun and aimed it at a person with whom he
had a dispute, in a residential area, ignoring the presence of innocent bystanders,
including a child. Thus, the trial court did not abuse its discretion in concluding
that the incidents were sufficiently similar and admitting the evidence of the
6
Under the new Evidence Code, the admission of this type of evidence is governed by
OCGA § 24-4-404 (b).
23
1999 act. See id. (holding that the trial court did not err in admitting similar
transaction evidence because the prior incident and the incident at issue shared
several similarities, including showing the defendant’s “propensity to resort to
deadly force with little or no provocation”); Hickson v. State, 308 Ga. App. 50,
52-53 (706 SE2d 670) (2011) (concluding that the three prior incidents and the
incident at issue were sufficiently similar because they all involved the
defendant’s pulling out a gun after a verbal altercation).
Judgments in Case No. S14A0800 and Case No. S14A0801 affirmed. All
the Justices concur.
24