McGarity v. State ( 2021 )

In the Supreme Court of Georgia
Decided: March 15, 2021
S20A1528. McGARITY v. THE STATE.
LAGRUA, Justice.
Appellant Chanze Labron McGarity was convicted of malice
murder and other crimes in connection with the shooting death of
James Hendon.1 On appeal, Appellant contends that the trial court
1 The crimes occurred on November 16, 2013. In June 2014, a Paulding
County grand jury indicted Appellant for malice murder, felony murder,
aggravated assault of Hendon, aggravated assault of Eddie Head, simple
battery of Hendon, simple battery of Head, four counts of possession of a
firearm during the commission of a felony, and possession of a firearm by a
first-offender probationer. At a jury trial in February 2015, Appellant was
found guilty of malice murder, felony murder, three counts of possession of a
firearm during the commission of a felony, aggravated assault of Hendon,
reckless conduct as to Head (as a lesser-included offense of aggravated
assault), both counts of simple battery, and possession of a firearm by a first-
offender probationer. The jury found Appellant not guilty of the firearm-
possession count predicated on the aggravated assault of Head. The trial court
sentenced Appellant to serve life in prison without the possibility of parole for
the malice murder conviction, concurrent 12-month terms for the simple
battery and reckless conduct convictions, a consecutive five-year term for
firearm possession during the malice murder, and a concurrent five-year term
for firearm possession by a first-offender probationer. The remaining counts
merged or were vacated by operation of law. Appellant filed a timely motion
erred by (1) limiting Appellant’s cross-examination of certain
witnesses concerning their prior convictions; (2) allowing a law
enforcement officer to offer testimony regarding certain witnesses’
prior consistent statements; and (3) permitting a witness to testify
after refreshing her recollection with a document that was not
provided to the defense before trial. We conclude that, while the
trial court improperly admitted the prior consistent statements of
three witnesses, such error requires reversal of Appellant’s
convictions on only two counts. Accordingly, we affirm in part and
reverse in part.
1. The evidence presented at trial showed the following. 2 On
the evening of November 16, 2013, Hendon was shot and killed in
for new trial in February 2018, which he amended through new counsel in
September 2019. After a hearing, the trial court denied the motion in
December 2019. Appellant then filed a timely notice of appeal. The case was
docketed to this Court’s August 2020 term and submitted for a decision on the
briefs.
2 Because this case requires an assessment of the harm of alleged trial
court error, we present the evidence as jurors reasonably would have viewed
it, rather than in the light most favorable to the verdicts. See Hampton v.
State, 308 Ga. 797, 802 (2) (843 SE2d 542) (2020) (“In determining whether
[an] error was harmless, we review the record de novo and weigh the evidence
as we would expect reasonable jurors to have done so.” (Citation and
punctuation omitted.)).
2
the parking lot outside Mr. G’s, a Paulding County convenience
store. A responding officer found a single shell casing on the ground
in close proximity to Hendon’s body. Witnesses at the scene told an
investigator that four men had fled the scene on foot. No suspects
were apprehended that evening.
At trial, Jeffrey Berry, who described himself as a friend of
Appellant, testified that on the evening of the shooting he was at
Mr. G’s when Appellant and Eddie Head, another friend, entered the
store, arguing. At some point thereafter, Berry exited the store and
saw Appellant, Head, and a third friend, Steve White, arguing.
Berry “just kind of fell back, just waited off to the side.” Appellant
walked up closer to Berry, and Head and White were still standing
together, “arguing a little bit.” Then Hendon walked by “kind of
close towards” Appellant, prompting Appellant to say, “Hey, what’s
wrong with you? There’s things going on here.” Hendon turned
around and replied, “Excuse me?” Appellant turned and slapped
Hendon in the face, and Hendon “went down.” Hendon appeared to
be preparing to defend himself, “[a]nd then the next thing you know
3
[Appellant] grabbed him and put him up against the wall and then
pulled the pistol. And that’s when he shot him.” Everyone in the
vicinity ran, including Berry, White, Head, and Appellant.
Berry described the gun Appellant had that night as a dark-
colored gun and testified that he had known Appellant to carry a
nine-millimeter gun. In addition, Berry testified that he had seen
Appellant on one occasion after the shooting “at church.” They
exchanged greetings, and Appellant told Berry to “tell them folks
that [Head] shot that guy.” Appellant offered, in exchange, to help
find someone to cosign on a loan with Berry.
Head testified that on the night of the shooting, he walked up
the street to Mr. G’s from a nearby apartment complex, Merchants
Court, to purchase cigarettes. As soon as he exited the store,
Appellant hit him in the face, and Head stumbled to the ground.
Head testified that, when he got up to defend himself, Appellant
pressed a black gun into his abdomen, and Head backed up. White,
an acquaintance, walked up to help, telling Head to calm down.
Head and White walked away and stood “a little ways from the
4
building.” Appellant remained near the building, “pacing . . . like he
wanted to fight.” Hendon then appeared, and Head saw Appellant
hit Hendon in the face with his gun and then shoot him. Head fled
and returned to Merchants Court.
White testified that, on the night of the shooting, he was
leaving his girlfriend’s apartment at Merchants Court to walk to Mr.
G’s when he encountered Appellant. White’s friend, Autumn
Barner, was leaving the apartment complex at the same time and
offered them a ride. When they arrived at the shopping plaza where
Mr. G’s was located, the men exited the car. Head was walking out
of the store, and Appellant and Head started fighting. White broke
up the fight, told Appellant to go into the store, and walked away
with Head. As they walked, Head kept “telling [White] to turn
around,” but White continued walking away to avoid further
conflict. White then heard a “pop” and turned to see Appellant
running away with what White believed was a gun. In response to
5
the “pop,” White ran away, back to Merchants Court. 3
Two additional witnesses, both cousins of Appellant, testified
that they saw Appellant at Mr. G’s just prior to the shooting. Both
witnesses had left the store by the time of the shooting, though both
were close enough to hear the gunshot.
Victoria Thompson, White’s girlfriend, testified that on the
night of the shooting, White returned to her apartment from the
store, shaken. White told Thompson that Appellant and Head had
“got into it” and that, while White was trying to break up the fight,
he heard a gunshot behind him.
Ty McClarity, Thompson’s roommate and Appellant’s
girlfriend at the time, testified that Appellant had been at her
apartment in Merchants Court on the day of the shooting when she
left for work. When she returned home that night, White was
“pacing” in the breezeway outside her apartment, saying “I don’t
know why bro did that,” which she interpreted to mean that
3 Barner testified that, while she did see the altercation between
Appellant and Head, she did not see or hear the shooting.
6
“[Appellant] had did something.” Appellant never returned to
McClarity’s apartment.
Vivian Washington, a friend of Appellant, testified that, on the
day after the shooting, Appellant called to ask her to pick him up,
and he stayed overnight at her apartment. The next day,
Washington purchased nine-millimeter bullets for Appellant at his
request. The following night, Appellant arrived at Washington’s
apartment unannounced and went to rest in her bedroom. Law
enforcement officers arrived shortly thereafter and arrested
Appellant. Washington consented to a search of her apartment,
where officers found a black nine-millimeter handgun in
Washington’s bedroom. Washington testified that the gun was not
hers and that she assumed it belonged to Appellant. Testing later
confirmed that the bullet recovered from Hendon’s body during his
autopsy was fired from the gun recovered at Washington’s
apartment, and DNA obtained from the gun was matched to
Appellant.
Appellant does not challenge the legal sufficiency of the
7
evidence supporting his convictions. Nevertheless, in accordance
with this Court’s soon-to-end practice in murder cases, we have
reviewed the record and conclude that, when viewed in the light
most favorable to the verdicts, the evidence presented at trial and
summarized above was sufficient to authorize a rational jury to find
Appellant guilty beyond a reasonable doubt of the crimes of which
he was convicted. 4 See Jackson v. Virginia, 443 U.S. 307, 319 (99
SCt 2781, 61 LE2d 560) (1979). See also Davenport v. State, 309 Ga.
385, 397 (4) (b) (846 SE2d 83) (2020) (in assessing the sufficiency of
the evidence for purposes of constitutional due process, “we consider
all the evidence admitted at trial, regardless of whether the trial
court erred in admitting some of that evidence”); Vega v. State, 285
Ga. 32, 33 (1) (673 SE2d 223) (2009) (“It was for the jury to
determine the credibility of the witnesses and to resolve any
4 This Court will end its practice of considering the sufficiency of the
evidence sua sponte in non-death penalty cases with cases docketed to the term
of court that begins in December 2020. See Davenport v. State, 309 Ga. 385,
399 (4) (846 SE2d 83) (2020). The Court began assigning cases to the December
term on August 3, 2020.
8
conflicts or inconsistencies in the evidence.” (Citation and
punctuation omitted.)).
2. Appellant contends that the trial court erred by limiting
Appellant’s cross-examinations of White and Berry about their prior
convictions, in violation of his rights under the Sixth and Fourteenth
Amendments to the United States Constitution. Specifically,
Appellant contends that the limitations on his cross-examination
hampered his ability to explore “[t]he relationship of these
witnesses, the possibility of gang affiliation, [and] the circumstances
of [the witnesses’] drug convictions,” which were, he claims, relevant
to his defense. We discern no merit in this contention.
Prior to trial, the State filed a motion in limine requesting that
the trial court limit the defense’s cross-examination with respect to
the details of certain witnesses’ prior convictions. The State argued
that only the offenses charged and their time and place should be
admissible. In response, defense counsel argued that information
regarding these crimes “might be relevant to [the defense’s] theory
of the case” and requested that the trial court defer ruling until the
9
issue arose at trial. The trial court noted that it generally agreed
with the State but invited defense counsel to let the court know if a
concern arose during trial, stating that the court “[would] be glad to
take it up” at that time. Defense counsel did not offer any further
indication as to what additional information the defense might seek
to elicit or why it might be relevant.
At trial, White testified on direct examination that he had
previously been convicted of aggravated assault, possession of a
firearm during the commission of a felony, theft by receiving, and
violation of the Georgia Controlled Substances Act. Similarly, Berry
testified on direct examination as to his prior convictions for theft by
receiving, violation of the Georgia Controlled Substances Act,
escape, and financial transactions fraud. Defense counsel did not
seek to elicit any additional information regarding the prior
convictions while cross-examining either witness. Nor did the
defense seek to revisit this issue with the trial court at any point
during the trial. Defense counsel did, however, elicit that White was
10
on probation at the time of the shooting and that Berry was in jail
at the time he came forward with information about the shooting.
To obtain ordinary appellate review of a trial court’s ruling
excluding evidence, “the substance of the evidence [must have been]
made known to the court by an offer of proof or [been] apparent from
the context[.]” OCGA § 24-1-103 (a) (2). See also Walker v. State,
301 Ga. 482 (3) (801 SE2d 804) (2017). Thus, to preserve an
objection to the exclusion of evidence, the proponent must either
make an offer of proof or otherwise ensure that “the reason for
offering the evidence in question [is] apparent to the trial court.”
Williams v. State, 302 Ga. 147, 151 (2) (805 SE2d 873) (2017)
(emphasis in original). Because Appellant did neither, he has
waived his right to ordinary appellate review, and this enumeration
is reviewable only for plain error. See Walker, 301 Ga. at 487.
To establish plain error, Appellant must show that
(1) the error was not affirmatively waived by the
appellant; (2) the error is “clear or obvious, rather than
subject to reasonable dispute”; (3) the error “affected the
appellant’s substantial rights”; and (4) “the error
seriously affects the fairness, integrity or public
11
reputation of judicial proceedings.”
Williams, 302 Ga. at 151-152 (citation omitted). “Satisfying all four
prongs of this standard is difficult, as it should be.” Walker, 301 Ga.
at 485 (citation and punctuation omitted). Meeting this standard is
all the more difficult where error is asserted based on the exclusion
of evidence that the proponent has failed to specifically identify. See
id. at 488 (explaining that the appellant’s “failure to make the
evidence known to the court . . . all but dooms his claim under plain
error review”). Indeed, the failure to do so
makes it impossible to determine that the [evidence at
issue] would have been admissible at trial, much less that
[its] admissibility was so clear or obvious as to be beyond
reasonable dispute. Likewise, without informing [this
Court] what the [evidence would show], Appellant cannot
meet his burden to show that there is a reasonable
probability that, but for [its] exclusion at trial, the
outcome would have been more favorable to him.
Id. (citations and punctuation omitted). Accordingly, Appellant has
demonstrated no error – plain or otherwise – with regard to this
issue. See Parker v. State, 309 Ga. 736, 743-744 (4) (848 SE2d 117)
(2020) (where appellant failed to apprise trial court of substance of
12
evidence he claims to have been erroneously excluded, he has not
preserved ordinary error and cannot demonstrate plain error).
3. Appellant also contends that the trial court erred by
allowing Captain William Gorman of the Dallas Police Department
to testify as to the statements made to him by Head, White, and
Barner on the day after the shooting. Appellant asserts that the
prior statements improperly bolstered the credibility of these three
witnesses. The State contends that Captain Gorman’s testimony
was admissible as evidence of prior consistent statements to rebut
the defense’s attacks on these witnesses’ credibility and that, even
if this testimony should not have been admitted, the error was
harmless. We review the trial court’s rulings on the admission of
evidence for an abuse of discretion. See Bridgewater v. State, 309
Ga. 882, 886 (2) (848 SE2d 865) (2020).
Under our current Evidence Code,
An 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
13
admissible under this chapter.
OCGA § 24-8-801 (d) (1) (A). It is undisputed that all of the out-of-
court statements Appellant challenges in this enumeration were
made by witnesses who testified at trial and were available for cross-
examination, and thus the dispositive question is whether the
witnesses’ prior statements, offered through Captain Gorman’s
testimony, were admissible as prior consistent statements under
OCGA § 24-6-613 (c).5
OCGA § 24-6-613 (c), enacted as part of the overhaul of our
rules of evidence that took effect on January 1, 2013, see Ga. L. 2011,
p. 99, § 2, represents Georgia’s first codification of a rule on the
admissibility of prior consistent statements. See Walters v. State,
335 Ga. App. 12, 13 (780 SE2d 720) (2015). Prior to the adoption of
OCGA § 24-6-613 (c), Georgia case law established that prior
consistent statements, while not admissible as substantive evidence
to bolster or fortify a witness’ trial testimony, could be admitted in
5No argument has been made, nor do we conclude, that the statements
were “otherwise admissible” under the pertinent chapter of the current
Evidence Code.
14
the narrow circumstance where (1) a witness was impeached by
some “affirmative charge[ ]” that the witness’ testimony was tainted
by “recent fabrication, improper influence, or improper motive” and
(2) the prior statement predated the alleged fabrication, influence,
or motive. Cowart v. State, 294 Ga. 333, 339-340 (4) (a) (751 SE2d
399) (2013); see also Woodard v. State, 269 Ga. 317, 320 (2) (496
SE2d 896) (1998), overruled on other grounds by Bunn v. State, 291
Ga. 183 (728 SE2d 569) (2012). Our pre-2013 decisional law was
largely modeled after the federal approach to the admission of prior
consistent statements as substantive evidence. See Cowart, 294 Ga.
at 340 (citing Tome v. United States, 513 U.S. 150, 158 (115 SCt 696,
130 LE2d 574) (1995)); Woodard, 269 Ga. at 320 (noting standard of
admissibility under the analogous federal evidence rule).
In enacting OCGA § 24-6-613 (c), the legislature both codified
our pre-2013 approach and broadened the range of circumstances in
which prior consistent statements are to be deemed admissible.
OCGA § 24-6-613 (c) provides:
A prior consistent statement shall be admissible to
15
rehabilitate a witness if the prior consistent statement
logically rebuts an attack made on the witness’s
credibility. A general attack on a witness’s credibility
with evidence [pertaining to character or prior criminal
convictions] shall not permit rehabilitation under this
subsection. If a prior consistent statement is offered to
rebut an express or implied charge against the witness of
recent fabrication or improper influence or motive, the
prior consistent statement shall have been made before
the alleged recent fabrication or improper influence or
motive arose.
Id. While the final sentence of the Code section effectively codifies
our prior decisional law, see Cowart, 294 Ga. at 340 n.10, the first
two sentences expand the admissibility criteria to cover prior
statements offered to rehabilitate a witness against any attack on a
witness’ credibility, other than that based on character or prior
convictions, so long as the prior statement “logically rebuts” that
attack. See Walters, 335 Ga. App. at 13-14. Reading the Code
section as a whole, it is clear that a prior consistent statement will
be admissible only if (1) the witness’ credibility has been attacked,
by some means other than impeachment by evidence of character or
prior convictions; and (2) the prior statement “logically rebuts” that
attack. Further, if the attack is by a charge of recent fabrication or
16
improper influence or motive, a prior statement may “logically
rebut” the attack only if it was made before the alleged fabrication,
influence, or motive came about.
Here, during the State’s case-in-chief, the State called Captain
Gorman to testify about his investigation of the case. In detailing
the chronology of his investigation, Captain Gorman testified, over
objection, about interviews he had conducted on the day after the
shooting with various witnesses, including Head, White, and
Barner. All three of these witnesses had already testified. These
witnesses’ day-after statements, as recounted by Captain Gorman,
were largely consistent with their trial testimony.
On cross-examination, all three witnesses were questioned by
defense counsel in a manner designed to elicit that they were
acquainted with one another as fellow residents at Merchants Court
and that they had communicated among themselves prior to giving
their day-after statements. The clear implication of this line of
questioning was that these witnesses had “huddled up” to spin a
narrative implicating Appellant as the shooter. Head and White
17
were also both asked about prior inconsistent statements they made
to the police on the night of the shooting.
Appellant contends that these witnesses’ day-after statements
were improperly admitted under Cowart and OCGA § 24-6-613 (c)
because the statements were made after the witnesses’ alleged
collusion with one other. So far as this argument goes, we agree
with it: because these witnesses’ day-after statements were not
made “before the alleged recent fabrication . . . arose,” OCGA § 24-
6-613 (c), they could not be offered to logically rebut the attacks on
the witnesses’ credibility based on such fabrication. See Cowart, 294
Ga. at 341 (written proffer made during plea negotiations was not
admissible at trial because the witness had the same alleged motive
to fabricate – to curry favor with the State – at the time he made the
proffer). As to Barner, because the only mode of attack on her
credibility was via the allegation of collusion to fabricate, her day-
after statement was not admissible. Thus, the trial court abused its
discretion in admitting Barner’s prior consistent statement.
The analysis with regard to Head’s and White’s day-after
18
statements, however, is not as clear-cut. Head admitted on cross-
examination that, on the night of the shooting, Head told Captain
Gorman that he “knew nothing” about it. Similarly, White was
cross-examined regarding a statement he made to a different officer
on the night of the shooting, in which, the cross-examination
implied, he had failed to mention seeing a gun in Appellant’s hand.
Thus, Appellant elicited prior inconsistent statements from these
two witnesses, although it is not clear that the theory behind that
mode of impeachment was different than the claim of fabrication,
with the earlier inconsistent statements elicited simply to support
the suggestion that the witnesses had then colluded to change their
stories.
Whether such an additional possible theory of impeachment
makes a difference under Georgia’s expanded parameters of
admissibility for prior consistent statements is a question that the
parties have not addressed. Nor is there any indication that the trial
court relied on such an unargued theory, rather than the traditional
charge-of-fabrication theory, in admitting any of the prior consistent
19
statements. The State cites no Georgia case law supporting the
admission of Head’s and White’s prior consistent statements on this
ground, nor have we found any.6 To the extent that we should look
to analogous federal case law as persuasive, that case law would not
support the admission of the prior consistent statements in this case
to logically rebut prior inconsistent statements made in different
interviews on the previous day, particularly when an alleged motive
to fabricate arose during the time between the initial and the day-
after statements.7 For these reasons, we hold that the trial court
6 The State has cited several cases for the broad proposition that prior
consistent statements are admissible whenever they logically rebut any attack
on a witness’ credibility. But we have noted pointedly that, even under OCGA
§ 24-6-613 (c), “[a] prior consistent statement is not permitted to rehabilitate a
general attack on a witness’s credibility.” Abney v. State, 306 Ga. 448, 453 (3)
(a) (831 SE2d 778) (2019). And the cases the State cites are largely charge-of-
fabrication cases. See Glover v. State, 309 Ga. 102, 108 (3) (844 SE2d 743)
(2020) (detective’s testimony about witness’ statement made hours after
shooting admissible where it rebutted defense’s implication of fabrication);
Abney, 306 Ga. at 454 (detective’s testimony about witness’ statement
admissible where statement made prior to motive to fabricate arose); Dorsey v.
State, 303 Ga. 597, 603 (3) (814 SE2d 378) (2018) (no error in admitting
witness’ prior consistent video-recorded statement “[b]ecause the thrust of
[appellant’s] cross-examination was a charge that [the witness] fabricated a
different version of events after giving his written statement”).
7 We note that the analogous federal rule of evidence, Rule 801 (d) (1)
(B), was amended in 2014, three years after Georgia’s current Evidence Code
was enacted, to broaden the range of prior consistent statements that are
20
also abused its discretion in admitting Head’s and White’s prior
consistent statements. 8 That holding, however, does not require
reversal of all of Appellant’s convictions.
admissible as substantive evidence. The federal rule now allows admission as
non-hearsay not only of statements offered to rebut a charge of recent
fabrication but also statements offered “to rehabilitate the declarant’s
credibility as a witness when attacked on another ground.” Fed. R. Evid. 801
(d) (1) (B) (ii). This language is similar to, though not the same as, OCGA § 24-
6-613 (c)’s provision allowing prior consistent statements that “logically rebut[]
an attack made on the witness’s credibility.” As noted in a leading treatise, it
is clear from the Advisory Committee Notes to the 2014 amendment that this
change to the federal rule does not actually expand the scope of admissibility
of prior consistent statements but rather “only expands the permissible use of
such statements once admitted,” allowing what had always been admissible
for non-substantive rehabilitation purposes to now also be admissible as
substantive evidence. 30B Arthur R. Miller et al., Federal Practice and
Procedure—Evidence § 6754 (2020 ed.). Regarding the admissibility of prior
consistent statements to rehabilitate a witness after impeachment by a prior
inconsistent statement, however, it appears that the consensus view among
federal courts is that prior consistent statements are admissible only to the
extent they “come from the same source,” meaning that the two statements
were made in the same interview, witness statement, or conversation. Id.
Were we to follow those decisions here, Head’s and White’s prior consistent
statements would not be admissible. And the State has offered us no reason
to believe that a different approach is warranted in this case under the
language of OCGA § 24-6-613 (c) (although we do not rule out the possibility of
being persuaded otherwise in a future case).
8 To the extent the State contends that a particular portion of White’s
day-after statement, in which he told Captain Gorman he saw a gun in
Appellant’s hand after hearing the gunshot, was admissible to rebut White’s
equivocation on cross-examination about whether he actually saw a gun, we
note that White actually testified about this portion of his statement on
redirect. As the State had thus already elicited that portion of White’s prior
statement, the State was not entitled to then have this statement repeated by
Captain Gorman, which served no purpose other than to bolster White’s own
testimony about his prior statement.
21
“The improper admission of bolstering evidence is a non-
constitutional, evidentiary error.” Cowart, 294 Ga. at 341. Thus, to
determine whether such error requires reversal, we must determine
whether it is highly probable that the error did not contribute to the
jury’s guilty verdicts. See Davenport v. State, 309 Ga. 385, 389 (2)
(846 SE2d 83) (2020). Where 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.”
Character v. State, 285 Ga. 112, 120 (6) (674 SE2d 280) (2009)
(citation and punctuation omitted). Instead, “we must consider
factors such as whether the [S]tate’s case was based primarily on
the bolstered testimony, and whether the improper bolstering added
critical weight to that testimony.” Silvey v. State, 335 Ga. App. 383,
391 (2) (a) (780 SE2d 708) (2015) (citation and punctuation omitted).
See, e.g., Cowart, 294 Ga. at 342-343 (improper bolstering was
harmless as to one defendant because of the strength of the evidence
against him apart from bolstered testimony, but not harmless as to
22
his co-defendant because the only substantial evidence against him
came from the improperly bolstered witness).
Here, most of the State’s case did not rest primarily on the
testimony of Barner, Head, or White. Barner was a secondary
witness who testified that she neither saw nor heard the shooting.
Though both Head and White were significant witnesses, there was
ample evidence independent of their testimony to support the jury’s
verdicts on all the counts involving Hendon’s murder. Berry gave a
firsthand account describing Appellant hitting and then shooting
Hendon. Appellant’s girlfriend McClarity testified that she
returned to Merchants Court after the shooting to find White
“pacing” outside her apartment and making remarks that she
interpreted as meaning Appellant “had did something”; she also
testified that Appellant never returned to her apartment after the
shooting. Appellant’s own cousins placed Appellant at the scene
minutes before the shooting. Washington testified that she
purchased nine-millimeter bullets for Appellant at his request the
day after the shooting. Most significantly, at the time of Appellant’s
23
arrest two days after the shooting, investigators found, in the
bedroom where he was apprehended, a nine-millimeter handgun,
which was later determined to have fired the bullet that killed
Hendon, and on which Appellant’s DNA was later found. In light of
the totality of this evidence, it is highly probable that any prior
consistent statements admitted improperly through Captain
Gorman did not contribute to the verdicts on the counts involving
Hendon. See Puckett v. State, 303 Ga. 719, 722 (3) (814 SE2d 726)
(2018) (any error in admitting witness’ prior consistent statements
was harmless, as improper evidence was cumulative of properly
admitted evidence from other witnesses and evidence of appellant’s
guilt was overwhelming).
The same cannot be said, however, for the two counts involving
Appellant’s confrontation with Head. While other witnesses
testified that Appellant and Head were involved in an argument, the
only evidence that Appellant hit Head, which was the basis for the
simple battery verdict, or placed a gun against his abdomen, which
was the basis for the reckless conduct verdict, was the testimony of
24
Head, White, and Barner. Accordingly, because the trial court’s
error in admitting these witnesses’ prior consistent statements to
bolster their testimony likely affected the jury’s guilty verdicts on
those two charges, the error was harmful to that extent and the
convictions for those two charges must be reversed.
4. In his final enumeration, Appellant contends that the trial
court erred in permitting Deborah Harlow, the GBI forensic biologist
who collected the DNA sample from the murder weapon, to refresh
her recollection about the firearm’s chain of custody with a
document that was not produced to the defense before trial.
Appellant has failed to establish error in this regard.
The record reflects that Harlow was called to testify only as to
the process by which she collected the DNA sample from the gun and
not as to the actual testing of the sample, which was conducted by a
different witness. Prior to explaining that process, Harlow was
asked about the crime lab’s procedures for the intake of evidence and
documentation of chain of custody. When questioned about the
chain of custody of the gun recovered in this case, Harlow referred
25
to a document to refresh her recollection, and defense counsel
objected, contending that the State had committed a Brady/Giglio 9
violation by not producing the document and had also violated its
statutory duty to “reduce anything that [Harlow] did in this case to
writing. 10 The prosecutor responded that this document was merely
an “internal computer printout” related to the chain of custody; that
he believed all documents had been provided to the defense; and that
the “remedy” would be “to give everybody an opportunity to review”
the document. The trial court overruled the objection, and Harlow
proceeded with her testimony.
Claiming that the report Harlow referred to at trial “differs
from a similar report received by defense counsel,” Appellant asserts
some violation on the State’s part that, he claims, has prejudiced his
ability to “verify the chain of custody” of the DNA evidence. To the
9 See Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963);
Giglio v. United States, 405 U.S. 150 (92 SCt 763, 31 LE2d 104) (1972).
10 This latter objection was in apparent reference to OCGA § 17-16-4 (a)
(4), which requires the prosecution to produce to the defendant, prior to trial,
any “report of . . . scientific tests or experiments, including a summary of the
basis for the expert opinion rendered in the report” and to “reduce all relevant
and material oral portions of such report to writing.”
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extent Appellant is continuing to assert that the State violated a
duty to “reduce . . . to writing” an expert report, see OCGA § 17-16-
4 (a) (4), there was no violation here because Harlow was not
tendered as an expert witness. And to the extent Appellant
continues to assert a Brady/Giglio violation, Appellant has offered
no argument or citation of authority to support this claim, and we
thus conclude that it has been abandoned. See Supreme Ct. R. 22;
Blount v. State, 303 Ga. 608, 611 (2) (c) (814 SE2d 372) (2018). We
thus see no abuse of discretion in the trial court’s allowing Harlow
to testify based on her recollections refreshed by the chain of custody
document.
Judgment affirmed in part and reversed in part. All the
Justices concur.
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